Stack v The Queen - [2008] NSWCCA 271

Reported Decision: 191 A Crim R 251

New South Wales

Court of Criminal Appeal

CITATION: Stack v R [2008] NSWCCA 271

HEARING DATE(S): 28 October 2008

JUDGMENT DATE:
3 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; McCallum J at 3

DECISION: Leave to appeal granted but appeal dismissed.

CATCHWORDS: SENTENCING - one count of supply and one count of ongoing supply of methylamphetamine - appeal against sentence upon basis was disproportionate to comparable co-offender - appeal dismissed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: R v Bacon (2000) 120 A Crim R 28
R v Decandia (unreported, Court of Criminal Appeal 8 July 1994)
R v Fogg [2002] NSWCCA 395
R v Majzoub [2006] NSWCCA 12
R v Morgan (1993) 70 A Crim R 368
R v Radisich [2006] NSWCCA 52
R v Schumacher [2006] NSWCCA 135

PARTIES: Steven Brett STACK (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/414

COUNSEL: Mr J O'Sullivan (Appellant)
Mr G Rowling (Respondent)

SOLICITORS: Nicolas Moir and Associates Pty Ltd (Appellant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0293

LOWER COURT JUDICIAL OFFICER: O'Connor QC DCJ

LOWER COURT DATE OF DECISION: 22 January 2008

- 6 -

2008/414

McCLELLAN CJ at CL
SIMPSON J
McCALLUM J

WEDNESDAY 3 DECEMBER 2008

Steven Brett STACK v R

Judgment

1 McCLELLAN CJ at CL: I agree with McCallum J.

2 SIMPSON J: I agree with McCallum J.

3 McCALLUM J: The applicant seeks leave to appeal against the sentences imposed on him in the District Court on 22 January 2008 after he pleaded guilty to one offence of ongoing supply of methylamphetamine contrary to s 25A of the Drug Misuse and Trafficking Act 1985 and one offence of supplying methylamphetamine contrary to s 25(1) of that Act. Two further offences of supplying methylamphetamine were taken into account on a Form 1 at the request of the applicant pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The statutory maximum penalties for the two counts on the indictment were 20 years and 15 years imprisonment respectively.

4 For the offence of ongoing supply, the sentencing Judge imposed a term of imprisonment with a non-parole period of 3 years and an additional term of 2 years. For the offence of supplying, the sentencing Judge imposed a term of imprisonment with a non-parole period of 2 years and an additional term of 2 years. The two sentences were wholly concurrent.

5 All of the offences involved sales to police officers working undercover. The charge of ongoing supply alleged that between 8 September 2005 and 8 October 2005 the applicant on three separate occasions during a period of 30 consecutive days supplied 60.95 grams of methylamphetamine for financial reward. The facts of that offence were that, on each of three occasions, an undercover operative approached the applicant to buy methylamphetamine. On each occasion, the applicant then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stack v The Queen

Details

AGLC: Stack v The Queen [2008] NSWCCA 271
Case: [2008] NSWCCA 271
Decision Date: 3 December 2008

CaseChat Overview and Summary

The appellant, Stack, was convicted of one count of supply and one count of ongoing supply of methylamphetamine. Stack appealed against his sentence, arguing it was disproportionate to that of a comparable co-offender. The appeal was dismissed by the court, which found that the sentence was appropriate and did not require alteration.

The central issue before the court was whether the sentence imposed on the appellant was disproportionate when compared to the sentence given to a co-offender who participated in the same criminal activities. The court needed to determine if the appellant's sentence was excessive or inadequate in light of the principles of proportionality and parity in sentencing. The appellant argued that his sentence was harsher than that of his co-offender, who received a lesser sentence despite similar involvement in the drug supply activities.

The court examined the evidence and circumstances surrounding the drug supply activities, including the appellant's role and the extent of his involvement. It considered the principle that sentences should be proportionate to the offence and the offender's culpability. The court found that the sentence imposed was appropriate and did not disproportionately deviate from the sentence of the co-offender. The court concluded that the sentence reflected the seriousness of the offences and the appellant's culpability, and that there was no basis to interfere with the sentence imposed by the trial judge.

No further orders were made by the court. The appeal was dismissed, and the original sentence was upheld.

Orders