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White v The Queen

White v The Queen

Case [2013] NSWCCA 242 22 November 2013

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: White v R [2013] NSWCCA 242
Hearing dates: 5 September 2013
Decision date: 22 November 2013
Before: Macfarlan JA at [1]
Hidden J at [2]
Davies J at [6]
Decision:
1. Extend time to file Notice of Application for leave to appeal to 6 March 2013;
2. Grant leave to appeal;
3. Dismiss the appeal.

Catchwords: CRIMINAL LAW - leave to appeal against sentence - supply large commercial quantity of methylamphetamine - applicant with mental health issues - whether Muldrock error - whether sentencing judge took mental health issues into account in assessing objective seriousness - whether error in assessing objective seriousness - whether sentence manifestly excessive - low purity of drug.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Bolt v R [2012] NSWCCA 50
Butler v R [2012] NSWCCA 23
Efstathiadis v R [2009] NSWCCA 319
Hamieh v R [2007] NSWCCA 277
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ly v R [2008] NSWCCA 262
McLaren v R [2012] NSWCCA 284
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Perdija v R [2012] NSWCCA 244
R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
R v Koloamatangi [2011] NSWCCA 288
R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Trevor Essex v R [2013] NSWCCA 11
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Shane Jeffrey White (Applicant)
Crown
Representation: Counsel:
T Game SC (Applicant)
J Pickering SC (Crown)
Solicitors:
M Ricci (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/126166
Decision under appeal

Date of Decision:

2011-08-12 00:00:00

Before:

Ellis DCJ

File Number(s):

2010/126166

Judgment

MACFARLAN JA: I agree with Davies J.

HIDDEN J: An important part of the argument of senior counsel for the applicant was the low grade quality of the substance in this case. It was described in the statement of facts as "liquid/sludge" and was found in two containers. One container, found in a waste bin, contained 1.083 kilograms of the substance, with a pure methylamphetamine content of 4.5%. The other container, buried in the garden, contained 2.25 kilograms of the substance, with a purity of 6.5%. Nevertheless, as Davies J has recorded, the total weight of the material was 3.333 kilograms and was of substantial value in the drug market. Senior counsel questioned whether, being in the form of a sludge, it was saleable, but there is nothing in the material before this court to suggest that it was not.

The reference by the sentencing judge to a causal connection between the applicant's offending and his mental health issues appears to be related to an assessment of the applicant's…

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 White v The Queen

Details

AGLC: White v The Queen [2013] NSWCCA 242
Case: [2013] NSWCCA 242
Decision Date: 22 November 2013

CaseChat Overview and Summary

White was convicted for supplying a large commercial quantity of methylamphetamine and applied for leave to appeal against the sentence imposed. The Court of Appeal assessed whether the sentencing judge had made an error in determining the objective seriousness of the offence. This included examining whether the judge failed to properly consider White's mental health issues and whether the sentence was manifestly excessive given the low purity of the drug. The court's role was to determine if the appeal could proceed by examining the potential errors made by the sentencing judge and the overall fairness of the sentence.

The primary legal issues before the court were whether the sentencing judge had erred by not considering White's mental health issues in assessing the objective seriousness of the offence and whether this led to an incorrect assessment of the seriousness. Additionally, the court had to decide if the sentence was manifestly excessive, taking into account the low purity of the drug. The court needed to balance these factors to determine if the appeal should be allowed.

The court found that the sentencing judge had indeed made an error by not fully considering White's mental health issues in assessing the objective seriousness of the offence. The court noted that the sentencing judge had not made findings on White's mental health, which was a significant mitigating factor. Furthermore, the court held that the sentence was not manifestly excessive, despite the low purity of the drug. The court emphasised that the objective seriousness of the offence was high due to the large quantity of the drug involved. Therefore, the appeal was dismissed as the errors identified did not warrant a manifestly excessive sentence.

The court ordered that White's application for leave to appeal against sentence be dismissed. The findings confirmed that while the sentencing judge had made an error in not considering White's mental health issues, the overall sentence was not manifestly excessive, and thus the appeal could not proceed.

Orders