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Stephen Leslie Newton v R

Stephen Leslie Newton v R

Case [2009] NSWCCA 128 29 April 2009

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New South Wales
Court of Criminal Appeal

CITATION: Stephen Leslie Newton v R [2009] NSWCCA 128

HEARING DATE(S): 23 April 2009

JUDGMENT DATE:
29 April 2009

JUDGMENT OF: Grove J at 1; Howie J at 2; RA Hulme J at 3

DECISION: I would grant leave to appeal but dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - sentence - relevant factors - error as to maximum penalty - slip in expression by judge - parity - disparity justified by marked difference in age of offenders

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Douglas v R [2006] NSWCCA 94
Hudson v R [2009] NSWCCA 59
Lowe v The Queen (1994) 154 CLR 606
Postiglione v The Queen (1996-1997) 189 CLR 295
R v Burns [2007] NSWCCA 228
R v cHAN [1999] nswcca 103
R v Giang [2005] NSWCCA 387
R v Hoon [2000] NSWCCA 137
R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306
R v Rushby [1999] NSWCCA 104
R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47
R v Swan [2006] NSWCCA 47
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [172]
Tuifa v R [2008] NSWCCA 224

PARTIES: Stephen Leslie NEWTON
Regina

FILE NUMBER(S): CCA 2008/7683

COUNSEL: W Hunt (Applicant)
P Leask (Crown)

SOLICITORS: S O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/7683

LOWER COURT JUDICIAL OFFICER: Flannery J

LOWER COURT DATE OF DECISION: 19 August 2008

2008/7683

GROVE J
HOWIE J
RA HULME J
29 April 2009

Stephen Leslie NEWTON v R

Judgment

1 GROVE J: I agree with RA Hulme J.

2 HOWIE J: I agree with RA Hulme J.

3 R A HULME J: The applicant seeks leave to appeal against the sentence imposed upon him by Flannery DCJ (the sentencing judge) for an offence of on-going supply of a prohibited drug for financial or material reward. The maximum penalty provided by s 25A(1) of the Drugs Misuse and Trafficking Act 1985 for this offence is imprisonment for 20 years and/or a fine of 3500 penalty units.

4 The applicant was sentenced to imprisonment for 1 year 8 months with a non-parole period of 12 months. The sentence was specified to commence on 4 August 2008 and so he will be released on parole on the expiration of the non-parole period on 3 August 2009. In sentencing the applicant for this offence, and at his request, the judge took into account his guilt in respect of two offences of supplying a prohibited drug and one of possessing a prohibited drug.

5 On an earlier occasion the sentencing judge had sentenced the applicant’s co-offender, Mr Lopeti Vulaono. He was sentenced for the same offence of on-going supply of a prohibited drug and he asked that his guilt of two offences of supplying a prohibited drug and one of possessing a prohibited weapon be taken into account.…

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 Stephen Leslie Newton v R

Details

AGLC: Stephen Leslie Newton v R [2009] NSWCCA 128
Case: [2009] NSWCCA 128
Decision Date: 29 April 2009

CaseChat Overview and Summary

Newton appealed against his conviction and sentence for drug related offences. The trial judge had imposed a sentence of 16 months imprisonment with a non-parole period of eight months. The appeal was on the basis that the trial judge had made an error in calculating the maximum penalty and, in turn, had failed to consider the appropriate discount to apply for the guilty plea. The High Court of Australia considered the appeal, which was dismissed.

The appeal raised two issues for determination by the Court. The first was whether the trial judge’s error as to the maximum penalty was a sufficient ground for allowing an appeal against sentence. The second was whether the disparity between the appellant’s sentence and that of his co-offenders was so great as to render the sentence unjust. The Court found that the error made by the trial judge was not sufficient to warrant an appeal against sentence. The Court also found that the disparity between the appellant’s sentence and that of his co-offenders did not render the sentence unjust. The Court held that the trial judge had taken into account all relevant matters, including the disparity between the sentences of co-offenders, and had exercised its discretion reasonably.

The Court noted that the trial judge had considered all relevant matters, including the disparity between the sentences of co-offenders, and had exercised its discretion reasonably. The Court held that the trial judge’s error as to the maximum penalty did not warrant an appeal against sentence. The Court also held that the disparity between the appellant’s sentence and that of his co-offenders did not render the sentence unjust. The Court found that the disparity was justified by the marked difference in age between the appellant and his co-offenders.

The appeal was dismissed.

Orders