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West, Trent v The Queen

West, Trent v The Queen

Case [2017] NSWCCA 271 23 November 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: West, Trent v R [2017] NSWCCA 271
Hearing dates: 8 November 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Before: Gleeson JA at [1]; Rothman J at [4]; Hamill J at [74]
Decision:
(1)   Leave to appeal against sentence be granted;

(2)   Appeal be allowed;

(3)   The sentence imposed upon Trent West on 6 March 2017 by the District Court be quashed and in lieu thereof the Applicant be sentenced to imprisonment for a non-parole term of 8 months, commencing 2 March 2017 and a remainder of term of a further 10 months, concluding 1 September 2018;

(4) Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, the Court directs that the Applicant be released on parole forthwith;
(5) The conditions of parole shall be governed by the provisions of the Crimes (Administration of Sentences) Act 1999 to which s 51(1AA) of the Crimes (Sentencing Procedure) Act refers.
Catchwords: CRIMINAL APPEAL – submission that sentencing judge confine subjective circumstances to the finding on non-parole period rejected – acceptance that sentencing judge erroneously constrained sentencing discretion in relation to the imposition of full-time custodial sentence – effect of policy decisions and prior comments of Court requiring “exceptional circumstances” on statutory regime, if any, discussed – exceptional circumstances probably shown – appeal allowed – applicant’s immediate release ordered.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v R (2004) 78 ALJR 616; [2004] HCA 15
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
R v Brown [2013] NSWCCA 178
R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
R v Gip; R v Ly (2006) 161 A Crim R 173; [2006] NSWCCA 115
Robertson v R [2017] NSWCCA 205
Vaiusu v R [2017] NSWCCA 71
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: Trent West (Applicant)
Regina (Respondent Crown)
Representation:
Counsel:
Mr G James QC/Mr E James (Applicant)
Ms B Baker (Respondent Crown)
Solicitors:
Ashkan Tai Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent Crown)

File Number(s): 2016/139213
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

06 March 2017

Before:

Wells DCJ

File Number(s):

2016/139213

Judgment

GLEESON JA: I agree with the orders proposed by Rothman J.
As to appeal grounds 1 and 2, I agree that these grounds must fail for the reasons given by his Honour.
As to appeal ground 3 concerning the remarks in R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported) that an offender who is involved in the supply of…

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 West, Trent v The Queen

Details

AGLC: West, Trent v The Queen [2017] NSWCCA 271
Case: [2017] NSWCCA 271
Decision Date: 23 November 2017

CaseChat Overview and Summary

West v The Queen was a case heard by the High Court of Australia. The applicant, West, appealed against his sentence, which he claimed was excessive and imposed in error. The Court was asked to consider whether the sentencing judge had erred in imposing a full-time custodial sentence and to determine whether the sentencing judge had properly considered the exceptional circumstances of the case. The Court also considered the effect of policy decisions and prior comments of the Court, which require "exceptional circumstances" for the imposition of a full-time custodial sentence.

The legal issues before the Court included whether the sentencing judge had correctly exercised their discretion in imposing a full-time custodial sentence and whether the Court should intervene in the applicant's sentence. The Court noted that the sentencing judge had accepted that they had erroneously constrained their sentencing discretion and had imposed a sentence that was not appropriate in the circumstances. The Court also considered the effect of policy decisions and prior comments of the Court, which require "exceptional circumstances" for the imposition of a full-time custodial sentence. The Court found that the applicant had probably shown exceptional circumstances, which justified the Court intervening in his sentence.

The Court held that the sentencing judge had erred in imposing a full-time custodial sentence and had not properly exercised their discretion in doing so. The Court also found that the policy decisions and prior comments of the Court, which require "exceptional circumstances" for the imposition of a full-time custodial sentence, did not alter the statutory regime. The Court held that the applicant had probably shown exceptional circumstances, which justified the Court intervening in his sentence. As a result, the Court allowed the appeal and ordered the applicant's immediate release.

Orders