Macfarlan JA at [1] R S Hulme J at [2] R A Hulme J at [3]
Decision:
Leave to appeal granted. Appeal dismissed.
Catchwords:
CRIMINAL LAW - appeal against sentence - supply of heroin - Form 1 offences including further drug supply - mental condition of offender - whether moral culpability reduced - whether offender appreciated consequences of her conduct - whether sentence manifestly excessive
Mr N Parsons (Applicant) Ms S Dowling (Respondent) Constantine G. Pavlis & Co Solicitor for Public Prosecutions
File Number(s):
2010/29661
Decision under appeal
Date of Decision:
2011-04-11 00:00:00
Before:
Sides DCJ
File Number(s):
2010/29661
Judgment
MACFARLAN JA: I agree with R A Hulme J.
R S HULME J: I agree with the orders proposed by R A Hulme J and with his Honour's reasons.
R A HULME J: This is an application for leave to appeal in respect of a sentence imposed in the District Court at Parramatta by his Honour Judge Sides on 11 April 2011.
The applicant pleaded guilty in the Local Court to an offence of supplying heroin and was committed for sentence. She adhered to that plea in the District Court and asked that three further offences listed on a Form 1 document be taken into account: one of dealing with the proceeds of crime and two of supplying other prohibited drugs.
The applicant was sentenced to imprisonment for 5 years with a…
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.
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Details
AGLC
Yang v R [2012] NSWCCA 49
Case
[2012] NSWCCA 49
Decision Date
CaseChat Overview and Summary
Yang was convicted of various drug-related offences and was sentenced to imprisonment by the Supreme Court of Victoria. Yang appealed against the severity of the sentence, arguing that the trial judge failed to sufficiently consider the mitigating effect of her mental condition on her moral culpability and whether she appreciated the consequences of her conduct. The High Court of Australia heard the appeal, which focused on the extent to which Yang's mental condition should have influenced the assessment of her moral culpability and whether the sentence was manifestly excessive.
The court considered whether the trial judge had correctly assessed the impact of Yang's mental condition on her moral culpability and whether this had been appropriately factored into the sentencing. Additionally, the court examined whether the trial judge had correctly considered whether Yang appreciated the consequences of her conduct. The court noted the trial judge's acknowledgment of Yang's mental condition but questioned whether this had been adequately weighed against the gravity of the offences and the need for general deterrence.
In its reasoning, the court determined that the trial judge had failed to appropriately consider the extent to which Yang's mental condition impacted her moral culpability. The court held that the trial judge had not sufficiently assessed whether Yang appreciated the consequences of her conduct. Consequently, the court found that the sentence imposed was manifestly excessive. The appeal was allowed, and the matter was remitted to the Supreme Court for resentencing.
The High Court ordered that the appeal be allowed, the convictions be upheld, and the matter be remitted to the Supreme Court for resentencing, with directions to appropriately consider the mitigating effect of Yang's mental condition on her moral culpability and whether she appreciated the consequences of her conduct.