Veith v The Queen - [2018] NSWCCA 284

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Veith v R [2018] NSWCCA 284
Hearing dates: 20 April 2018
Date of orders: 07 December 2018
Decision date: 07 December 2018
Before: Fullerton J at [1]
Davies J at [2]
Lonergan J at [3]
Decision:
(1) The time within which to file a notice of appeal is extended to 6 March 2018.

(2) Leave to appeal against sentence allowed.
(3) Appeal dismissed.
Catchwords: SENTENCING – supply of a prohibited drug – sentence appeal – weight to be given to character – whether the sentencing judge determined weight given to character based on type of offence – whether the sentencing judge took an anterior step in sentencing – instinctive synthesis – whether sentence was manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10, 12, 21A
Criminal Appeal Act 1912 (NSW) s 6
Drug Misuse and Trafficking Act 1985 (NSW) s 25, Sch 1
Cases Cited: Athos v R ((2013) 233 A Crim R 302; [2013] NSWCCA 205
Johnson v R [2017] NSWCCA 43
Kentwell v The Queen (2014) 252 CLR 601; 238 A Crim R 134; [2014] HCA 37
Lam v R [2014] NSWCCA 50
Markarian v The Queen ((2005) 228 CLR 357; [2005] HCA 25
Parente v R [2017] NSWCCA 284
R v Clark ((Court of Criminal Appeal ((NSW), 15 March 1990, unrep)
R v Mauger [2012] NSWCCA 51
Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178
Ryan v R ((2001) 206 CLR 267; 118 A Crim R 538; [2001] HCA 21
Vaiusu v R [2017] NSWCCA 71
Van Can Ha v R [2008] NSWCCA 141
Yang v R ((2012) 219 A Crim R 550; [2012] NSWCCA 49
Category: Principal judgment
Parties: Susannah Veith (Applicant)
Regina (Crown)
Representation:
Counsel:
P Lange (Applicant)
F Veltro (Crown)
Solicitors:
John D Weller & Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/226944
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 March 2017

Before:

Wells DCJ

File Number(s):

2016/226944

Judgment

FULLERTON J: I agree with Lonergan J.
DAVIES J: I agree with Lonergan J.
LONERGAN J: Ms Susannah Veith, the applicant, seeks leave to appeal against a sentence imposed in the District Court at Lismore by Wells DCJ on 13 March 2017. The sentence was 12 months imprisonment, suspended on the applicant entering a s 12 good behaviour bond dating from 13 March 2017. This sentence expired on 12 March 2018.
The sentence was imposed in relation to an offence of supply a prohibited drug, namely 2.5 grams of MDMA, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant was arrested by police at the Splendour in the Grass festival in Byron Bay on 23 July 2016 and was committed for sentence on 7 February 2017 from Lismore Local Court. The MDMA was…

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 Veith v The Queen

Details

AGLC: Veith v The Queen [2018] NSWCCA 284
Case: [2018] NSWCCA 284
Decision Date: 07 December 2018

CaseChat Overview and Summary

The case of Veith v The Queen involved the appellant, Veith, appealing against the sentence imposed by the sentencing judge for supplying a prohibited drug. The dispute centred on the weight given to the appellant's character in the sentencing process and whether the sentencing judge correctly balanced this with the seriousness of the offence. The appeal was heard by the High Court of Australia.

The legal issues before the court included whether the sentencing judge properly assessed the appellant's character and whether this assessment was appropriately integrated into the sentencing decision. Additionally, the court needed to determine if the sentencing judge erred by taking an "anterior step" in sentencing, meaning that they began the sentencing process with a predetermined outcome. Furthermore, the court examined if the sentence was manifestly excessive given the circumstances of the case.

The court found that the sentencing judge did not err in determining the weight given to the appellant's character. It was held that the sentencing judge's consideration of the appellant's character was appropriate and did not constitute an anterior step. The court also concluded that the sentence was not manifestly excessive. The appeal was dismissed, and the original sentence upheld. The court held that the sentencing judge's approach to sentencing was consistent with the principles of instinctive synthesis and that the sentence imposed was proportionate to the offence committed.

Orders