Why v R

Case [2017] NSWCCA 101 19 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Why v R [2017] NSWCCA 101
Hearing dates: 29 March 2017
Date of orders: 19 May 2017
Decision date: 19 May 2017
Before: Hoeben CJ at CL [1]
Walton J at [2]
R A Hulme J at [59]
Decision:
(1) The application for an extension of time made on 16 November 2016 is granted.
(2) Leave to appeal on ground one is refused.
(3) Leave to appeal on ground two is granted and the appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – drug related offences – manifestly excessive ground – aggregate sentence not unreasonable or plainly unjust – justifiable sense of grievance given the sentence ground – principle of parity – parity principle not applicable – utility of sentencing statistics – leave to appeal in ground 1 dismissed – leave to appeal in ground 2 dismissed after leave granted
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Beale v R [2015] NSWCCA 120
Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31
Erazo v R [2016] NSWCCA 139
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huynh v The Queen (2008) 188 A Crim R 287; [2008] NSWCCA 216
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Khawaja v R [2014] NSWCCA 80
Knight v R [2015] NSWCCA 222
Meager v R [2009] NSWCCA 215
R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283
R v Barkho [2005] NSWCCA 211
R v Chidiac [2015] NSWCCA 241
R v Clarke [2013] NSWCCA 260
Rees v R [2012] NSWCCA 47
SHR v R (2014) 241 A Crim 544; [2014] NSWCCA 94
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Thangavelautham v R [2016] NSWCCA 141
Tweedie v R [2015] NSWCCA 71
Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154
Vuni v R [2006] NSWCCA 171
Wong v R (2001) 207 CLR 584; [2001] HCA 64
Zreika v R; Elsaj v R [2016] NSWCCA 177
Category: Principal judgment
Parties: Michael Why (Applicant)
State of New South Wales (Crown)
Representation:
Counsel:
M Swift (Applicant)
D Kell SC and M Pulsford (Crown)
Solicitors:
C Cole (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/106262
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal Law

Date of Decision:

16 October 2015

Before:

Williams SC DCJ

File Number(s):

2012/106262

Judgment

HOEBEN CJ at CL: I agree with Walton J.
WALTON J: By a notice of appeal filed 16 November 2016, the applicant, Michael Why, sought leave to…

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 Why v R

Details

AGLC: Why v R [2017] NSWCCA 101
Case: [2017] NSWCCA 101
Decision Date: 19 May 2017

CaseChat Overview and Summary

The appellant, Why, was convicted of various drug-related offences and appealed against the sentence imposed by the court. The appeal was heard in the High Court of Australia, where the central issue was whether the sentence was manifestly excessive. The appellant argued that the aggregate sentence was not only unreasonable but also unjust, asserting a justifiable sense of grievance due to the sentence. Additionally, the appellant contended that the principle of parity should have been applied, considering the sentences of co-offenders. However, the court found that the principle of parity was not applicable in this case.

The court thoroughly examined the sentencing principles and found that the aggregate sentence was neither unreasonable nor plainly unjust. The court rejected the appellant's argument regarding a justifiable sense of grievance, noting that the sentence was proportionate to the gravity of the offences committed. Furthermore, the court held that the principle of parity did not apply as the circumstances of the co-offenders were distinct. The utility of sentencing statistics was also considered, reinforcing the court's decision that the sentence was appropriate. Consequently, the court dismissed the leave to appeal in ground 1 and subsequently dismissed leave to appeal in ground 2 after it had initially been granted.

The final orders of the court were to dismiss the appellant's appeal against the sentence. The court found no merit in the arguments presented by the appellant, affirming that the sentence imposed was just and proportionate to the offences committed. The appeal was dismissed in its entirety, upholding the original sentencing decision.

Orders