Legal Research
Cases
XY (A Pseudonym) v R

XY (A Pseudonym) v R

Case [2023] NSWCCA 50 17 March 2023

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: XY (A Pseudonym) v R [2023] NSWCCA 50
Hearing dates: 09 September 2022
Date of orders: 17 March 2023
Decision date: 17 March 2023
Before: Kirk JA at [1]
Harrison J at [2]
Wright J at [3]
Decision:
(1) The applicant has leave to appeal.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – aggregate sentence for commercial and large commercial drug supply and firearms offences – whether sentencing judge erroneously applied sentencing discounts to the aggregate sentence and not the indicative sentence – discount not applied to aggregate sentence rather than indicative sentences – whether aggregate sentence manifestly excessive – aggregate sentence not manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW), ss 21A, 193(1), 193C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 53(2)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW), ss 11C(1), 10(1), 25(2)
Firearms Act 1996 (NSW), ss 7(1), 39(1), 62(1), 65(3)
Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases Cited:
Aryal v R [2021] NSWCCA 2
BB v R [2021] NSWCCA 283
Benn v R [2023] NSWCCA 24
Chartres-Abbott v R [2021] NSWCCA 239
Davidson v R [2022] NSWCCA 153; 100 MVR 336
Decision Restricted [2019] NSWCCA 102
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Huang v R [2019] NSWCCA 144
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
McLean v R [2020] NSWCCA 344
R v Li [2014] NSWCCA 327
R v Mahmud [2010] NSWCCA 219
Sahyoun v R [2020] NSWCCA 87
Tiew v R [2020] NSWCCA 234
Toole, Kurt v R (2014) 247 A Crim R 272; [2014] NSWCCA 318
TS v R [2022] NSWCCA 222
Vaughan v R [2020] NSWCCA 3
Vigo v R [2009] NSWCCA 98
Weiss v R [2020] NSWCCA 188
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: XY (A Pseudonym) (Applicant)
Rex (Crown)
Representation:
Counsel:
Z Khan (Applicant)
D Scully (Crown)
Solicitors:
Ford Criminal Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2017/330806
Publication restriction: Orders were made on 9 September 2022 that:
a. the applicant be identified in connection with these proceedings by the pseudonym “XY”; and
b. the publication of any information tending to reveal the identity of the applicant, the applicant’s parents, the applicant’s siblings and the applicant’s children in connection with these proceedings is prohibited.
Those orders apply throughout the Commonwealth of Australia and expire on the date of the applicant’s death.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

New South Wales

Date of Decision:

11 June 2021

Before:

Blackmore SC ADCJ

File Number(s):

2017/330806

HEADNOTE

[This headnote is not to be read as part…

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 XY (A Pseudonym) v R

Details

AGLC: XY (A Pseudonym) v R [2023] NSWCCA 50
Case: [2023] NSWCCA 50
Decision Date: 17 March 2023

CaseChat Overview and Summary

The case of XY (A Pseudonym) v R involves an appeal by the defendant against the sentence imposed for various drug supply and firearms offences. The defendant was convicted of commercial and large commercial drug supply, along with firearms offences, and sentenced by the sentencing judge to an aggregate sentence. The appeal was focused on the application of sentencing discounts by the sentencing judge. The central issue was whether the judge had erroneously applied the sentencing discounts to the aggregate sentence instead of the indicative sentences, and whether the aggregate sentence was manifestly excessive.

The court examined the principles of sentencing and the application of discounts in the context of aggregate sentences. It noted that the sentencing judge must consider the totality of the offending and apply appropriate discounts to the aggregate sentence, rather than merely applying the discounts to the indicative sentences. The court found that the sentencing judge had correctly applied the discounts to the aggregate sentence, and that there was no error in this regard. The court also found that the aggregate sentence was not manifestly excessive, as it had taken into account all relevant factors and was proportionate to the offending.

Based on the court's findings, the appeal was dismissed. The court upheld the sentence imposed by the sentencing judge, finding that it was appropriate and proportionate to the defendant's offending. The defendant's appeal against sentence was therefore unsuccessful. The court's decision confirms the importance of correctly applying sentencing discounts to the aggregate sentence, and the need for a sentence to be proportionate to the offending.

Orders