Wiseman v The Queen - [2016] NSWCCA 61

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wiseman v R [2016] NSWCCA 61
Hearing dates: 20 April 2016
Date of orders: 22 April 2016
Decision date: 22 April 2016
Before: Hoeben CJ at CL at [1]
Harrison J at [23]
Schmidt J at [24]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – supplying a prohibited drug – applicant serving other sentences – whether sentencing judge appropriately took into account the fact of those other sentences when imposing sentence in this matter – no error – appealed dismissed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) – s 10A
Criminal Appeal Act 1912 (NSW) – s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW) – s 25(1)
Cases Cited: Luke Nathan Richard Barrett v R [2011] NSWCCA 213
R v Wiseman (District Court (NSW) Toner SC DCJ, 20 April 2015)
Category: Principal judgment
Parties: Lucas John Wiseman – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Ms C Wasley – Applicant
Mr H Baker – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/161931
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 April 2015

Before:

Toner SC DCJ

File Number(s):

2014/161931

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant pleaded guilty to one offence of supply a prohibited drug (methylamphetamine) contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is imprisonment for 15 years. The commission of this offence breached two 12 month Local Court s 9 bonds imposed for shop lifting and custody of a knife. These bonds were called up and dealt with in the District Court with the supply offence.

The matter proceeded before Toner SC DCJ on 13, 22, 23 and 29 April 2015. On 29 April 2015 his Honour sentenced the applicant to imprisonment with a non-parole period of 18 months, backdated to commence on 28 February 2015 with a balance of term of 6 months. The s 9 bonds were dealt with by way of a conviction and no further penalty pursuant to s10A Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act).
The applicant was in custody, serving sentences imposed by the Local Court for a number of other offences from 29 May 2014 until 9 April 2015. The effect of his Honour backdating the commencement date of the sentence for this offence to 28 February 2015 meant that the effective non-parole period when one combined all of the sentences was 2 years and 3 months with a total term of 2 years and 9 months.
The applicant relies upon a single ground of appeal.

Ground 1 – The sentencing judge failed properly to consider the issue of special circumstances in the context of partially accumulating the sentence upon those sentences being served.

FACTUAL BACKGROUND

On 29 May 2014 police were advised that a man was passed…

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 Wiseman v The Queen

Details

AGLC: Wiseman v The Queen [2016] NSWCCA 61
Case: [2016] NSWCCA 61
Decision Date: 22 April 2016

CaseChat Overview and Summary

The applicant in this case, Wiseman, was appealing against the sentence imposed on him for supplying a prohibited drug. The applicant was already serving other sentences at the time the sentence in question was imposed, and the appeal was focused on whether the sentencing judge appropriately took into account the fact of those other sentences. The appeal was heard in the High Court of Australia.

The legal issue at the heart of the appeal was whether the sentencing judge appropriately took into account the fact that the applicant was serving other sentences when imposing sentence in this matter. The applicant argued that the sentencing judge had not taken into account the other sentences in an appropriate manner, and that this was a significant error. The central question for the court was whether the sentencing judge had made an error in failing to appropriately consider the other sentences when imposing the sentence in this matter.

The court found that there had been no error in the way the sentencing judge had taken into account the fact that the applicant was serving other sentences. The court held that the sentencing judge had appropriately considered the other sentences and had not made a significant error in this regard. The court found that the sentence imposed was appropriate, and dismissed the appeal. The court held that the sentencing judge had appropriately exercised their discretion in imposing the sentence, and that the appeal should be dismissed.

The court did not make any further orders in relation to the appeal. The sentence imposed on the applicant for supplying a prohibited drug was upheld, and the appeal was dismissed.

Orders