Whitby v The Queen - [2015] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Whitby v R [2015] NSWCCA 124
Hearing dates: 11 May 2015
Date of orders: 29 May 2015
Decision date: 29 May 2015
Before: Macfarlan JA at [1]
Johnson J at [2]
RS Hulme AJ at [3]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.
Catchwords: CRIMINAL LAW – appeal against sentence – whether manifestly excessive – parity –discretionary nature of sentencing – appeal dismissed
Cases Cited: Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274
Green and Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Parris v R [2013] NSWCCA 5
R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415
R v Lipton [2012] NSWDC 201
R v Mahmud [2010] NSWCCA 219
R v Sciberas [2006] NSWCCA 268; 165 A Crim R 532
Rees v R [2012] NSWCCA 47
Category: Principal judgment
Parties: Mitchell Whitby (Applicant)
Regina (Respondent)
Representation: Counsel:
K Edwards (Applicant)
K McKay (Respondent)

File Number(s): 2012/138988
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 August 2013

Before:

Lakatos SC DCJ

File Number(s):

2012/138988

Judgment

MACFARLAN JA: I agree with R S Hulme AJ.
JOHNSON J: I agree with R S Hulme AJ.
RS HULME AJ: On 29 August 2013 this Applicant for leave to appeal was sentenced by Lakatos SC DCJ in respect of three offences.
The first offence was that between 20 January 2012 and 7 March 2012 he supplied not less than a large commercial quantity, 1.182.56 kg, of 3,4-methylene-dioximethylamphetamine, commonly known as ecstasy. The minimum large commercial quantity of that drug is 500 g. The maximum penalty for that offence is life imprisonment and a substantial fine and a standard non-parole period of 15 years has been prescribed.
The second offence was of supplying not less than the commercial quantity of methylamphetamine between 15 December 2011 and 22 March 2012. The maximum penalty prescribed for this offence is imprisonment for 20 years and a substantial fine. A standard non-parole period of 10 years has been prescribed. The offence involved the supply of 807.8 g, ie a little more than three times the minimum commercial quantity of 250 g and approaching the upper limit of that quantity and the bottom of the large commercial range.
The third offence was of supplying not less than an indictable quantity of methorphan – an offence carrying a maximum period of imprisonment of 15 years and a substantial fine. The amount supplied was 72.1 g, something over 14 times the minimum indictable quantity of 5 g.
In sentencing the Applicant for the first offence, Lakatos DCJ took into account a further offence being the supply of 0.59 g of ecstasy in the form of 2 tablets.
The sentences imposed were:

For the first offence, imprisonment for a non-parole period of 4 years and 3…

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 Whitby v The Queen

Details

AGLC: Whitby v The Queen [2015] NSWCCA 124
Case: [2015] NSWCCA 124
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case of Whitby v The Queen involved an appeal against sentence, where the appellant argued that the sentence imposed was manifestly excessive. The appellant was convicted of serious criminal offences and was sentenced by the Supreme Court of Victoria. The nature of the appeal was to challenge the length and severity of the sentence, claiming it was disproportionate to the crime committed and not in line with similar cases.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether it failed to accord with the principle of parity, which requires sentences to be consistent with those imposed in similar cases. The court was required to consider the discretionary nature of sentencing, the severity of the crimes, and the appellant's personal circumstances. The appellant argued that the sentence should be reduced as it did not reflect the appropriate balance between punishment and rehabilitation.

The court considered the principles of sentencing and the severity of the crimes committed, which involved significant harm to victims. It was noted that the sentence was within the statutory maximum and reflected the gravity of the offences. The court held that the sentence was not manifestly excessive and that there was no basis to interfere with the sentencing discretion exercised by the trial judge. The court found that the sentence was proportionate to the crimes and was consistent with the principle of parity. The appeal was dismissed, and the original sentence was upheld.

Orders