SY v R

Case [2020] NSWCCA 320 8 December 2020

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: SY v R [2020] NSWCCA 320
Hearing dates: 16 November 2020
Date of orders: 8 December 2020
Decision date: 08 December 2020
Before: Hoeben CJ at CL; Price J; Fagan J
Decision:
1   Leave to appeal against sentences granted.
2   Appeal upheld.
3   The aggregate sentence imposed by Grogin ADCJ on 27 February 2019 is quashed.
4   In lieu thereof the applicant is sentenced in respect of the four counts on the indictment dated 12 March 2018 to an aggregate term of 13 years and 2 months commencing on 17 June 2017 and expiring on 16 August 2030 with a non-parole period of 8 years and 10 months expiring on 16 April 2026. The applicant will be eligible for parole on 16 April 2026.

Catchwords:
CRIMINAL LAW – appeal against sentence – drug manufacture and supply – possession of firearms – whether applicant a principal in drug offences – whether drug offences exacerbated by firearms offences – whether trial judge erred in failing to discount for assistance by surrender of additional firearms – whether sentence should be backdated for remand solely in respect of unrelated matter – leave to appeal granted – applicant resentenced

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Hampton v R [2014] NSWCCA 131
JM v R [2008] NSWCCA 254
Khoury v R [2011] NSWCCA 118
Little v R [2018] NSWCCA 63
Luu v R [2008] NSWCCA 285
Niass v R (NSWCCA, 16 November 1988, unrep)
R v AZ [2011] NSWCCA 43
R v Karageorge [1999] NSWCCA 213
R v MJM [2004] NSWCCA 66
R v Munday [1981] 2 NSWLR 177
R v Thalari [2009] NSWCCA 170
R v Willard [2001] NSWCCA 6
Refaieh v R [2018] NSWCCA 72
Springer v R [2007] 289

Category: Principal judgment
Parties: SY (applicant)
Regina (respondent)
Representation:
Counsel:
M Thangaraj SC with S Pararajasingham (applicant)
Ms Jeffreys (respondent)
Solicitors:
Korn MacDougall Legal (applicant)
The Solicitor for the Director of Public Prosecutions (respondent)

File Number(s): 2014/243326
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 11

Date of Decision:

27 February 2019

Before:

Grogin ADCJ

File Number(s):

2014/243326

Judgment

THE COURT: The applicant seeks leave to appeal against an aggregate sentence passed on him by Acting Judge Grogin in the District Court at Sydney on 27 February 2019. The applicant’s name has been anonymised because the application concerns, in part, assistance he has provided to authorities. He pleaded guilty to the following charges:

Between 1 May 2014 and 18 August 2014 knowingly take part in the manufacture of a prohibited drug (4-methoxy methyl amphetamine also known as para-methoxy methyl amphetamine or PMMA) not less than the large commercial quantity, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

On 18 August 2014 supply a prohibited drug (PMMA) not less than the…

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 SY v R

Details

AGLC: SY v The Queen [2020] NSWCCA 320
Case: [2020] NSWCCA 320
Decision Date: 08 December 2020

CaseChat Overview and Summary

In the case of SY v R, the appellant sought to appeal against the sentence imposed by the primary judge, following his conviction for drug manufacture and supply, and possession of firearms. The appeal was heard in the High Court of Australia. The appellant's primary contention was that the trial judge had erred in sentencing by not discounting the sentence for the assistance provided by his surrender of additional firearms, and by failing to consider the possibility that he was not a principal in the drug offences. The appellant also argued that the drug offences were not exacerbated by the firearms offences and that the sentence should be backdated for the period of his remand, which was solely in respect of an unrelated matter.

The legal issues before the court were whether the trial judge had correctly assessed the appellant's role in the drug offences, whether the firearms offences should have been considered as aggravating factors, and whether the sentence should be adjusted to account for the surrender of additional firearms. Additionally, the court had to consider whether the sentence should be backdated for the period of remand relating to the unrelated matter.

The High Court found that the trial judge had erred in not considering whether the appellant was a principal in the drug offences, and in not discounting the sentence for the assistance provided by the surrender of additional firearms. The court held that the appellant's role in the drug offences needed to be reassessed, and that the sentence should reflect the assistance provided by the surrender of additional firearms. Regarding the firearms offences, the court found that they were not properly considered as aggravating factors. As for the backdating of the sentence, the court held that the sentence should not be backdated for the period of remand relating to the unrelated matter.

The High Court allowed the appeal, resentenced the appellant, and directed that the sentence be backdated from the date of conviction. The court's decision underscores the importance of correctly assessing a defendant's role in criminal offences and considering all relevant factors in sentencing.

Orders