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Wienand v R

Wienand v R

Case [2013] NSWCCA 202 30 August 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wienand v R [2013] NSWCCA 202
Hearing dates: 15 July 2013
Decision date: 30 August 2013
Jurisdiction: Criminal
Before: Hoeben CJ at CL at [1]
McCallum J at [46]
Schmidt J at [50]
Decision:
1. In relation to grounds of appeal a. and b. leave to appeal refused.
2. In relation to ground of appeal c., leave to appeal granted but appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - supply a large commercial quantity of a prohibited drug - whether sentence manifestly excessive - parity - sentence of co-offender reduced by Court of Criminal Appeal - whether necessary to reduce applicant's sentence - no basis for justifiable sense of grievance - different subjective case and higher position in drug supply hierarchy.
Legislation Cited: Drug Misuse and Trafficking Act 1985 - s25(2)
Cases Cited: Butler v R [2012] NSWCCA 23
Dinsdale v R [2008] HCA 54; 202 CLR 321
DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hill v R [2012] NSWCCA 265
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Olbrich [1999] HCA 54; 199 CLR 270
Regina v Wei Pan [2005] NSWCCA 114
Category: Principal judgment
Parties: Paul Christopher Wienand - Applicant
Regina - Respondent Crown
Representation: Counsel:
Ms S Kluss - Applicant
Ms V Lydiard - Respondent Crown
Solicitors:
SE O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2010/401944
Decision under appeal

Date of Decision:

2012-08-10 00:00:00

Before:

Sorby DCJ

File Number(s):

2010/401944

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant pleaded guilty to one offence of supply a large commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is life imprisonment with a standard non-parole period of 15 years. The amount was 1,848.6 grams.

On 10 August 2012 the applicant was sentenced by Sorby DCJ to imprisonment with a non-parole period of 5 years and 6 months commencing 2 December 2010 and expiring 1 June 2016, with a balance of term of 2 years and 6 months, expiring 1 December 2018.

The applicant seeks leave to appeal from that sentence on the following grounds:

a. The sentence imposed on the applicant was manifestly excessive.

b. The sentence imposed started from a notional starting point that was too high.

c. The sentence imposed caused the applicant to have a justifiable sense of grievance when the sentence is compared to the sentence imposed on Hill, his co-offender.

Factual Background

The facts of the offending were set out in an Agreed Statement of Facts which became part of Exhibit "A" in the sentence proceedings. The Crown and defence each supplied a summary of facts. The following were the facts found by the primary judge.

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 Wienand v R

Details

AGLC: Wienand v R [2013] NSWCCA 202
Case: [2013] NSWCCA 202
Decision Date: 30 August 2013

CaseChat Overview and Summary

The appellant, Wienand, appealed against his sentence for supplying a large commercial quantity of a prohibited drug. The respondent, the Crown, opposed the appeal. The Court of Appeal was tasked with determining whether Wienand's sentence was manifestly excessive and whether it was appropriate to consider the sentence of a co-offender who had their sentence reduced by the Court of Criminal Appeal. The Crown also argued that Wienand had no justifiable sense of grievance and that his case was different from that of his co-offender due to his higher position in the drug supply hierarchy.

The court considered whether Wienand's sentence was manifestly excessive and if it was necessary to reduce it in light of the co-offender's reduced sentence. It also examined whether Wienand had a justifiable sense of grievance and if his position in the drug supply hierarchy warranted a different sentence. The court found that Wienand's appeal was not well-founded and dismissed it. The court held that there was no basis for a justifiable sense of grievance and that Wienand's case was different from that of his co-offender due to his higher position in the drug supply hierarchy.

The court concluded that Wienand's sentence was not manifestly excessive and that it was not necessary to reduce it in light of the co-offender's reduced sentence. The court found that Wienand's higher position in the drug supply hierarchy warranted a different sentence and that there was no basis for a justifiable sense of grievance. The court dismissed the appeal and upheld Wienand's sentence.

The Court of Appeal dismissed Wienand's appeal and upheld his sentence for supplying a large commercial quantity of a prohibited drug. The court found that there was no basis for a justifiable sense of grievance and that Wienand's case was different from that of his co-offender due to his higher position in the drug supply hierarchy. The court held that Wienand's sentence was not manifestly excessive and that it was not necessary to reduce it in light of the co-offender's reduced sentence.

Orders