YM v The King - [2023] NSWCCA 75

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: YM v R [2023] NSWCCA 75
Hearing dates: 10 February 2023
Date of orders: 05 April 2023
Decision date: 05 April 2023
Before: Kirk JA at [1]
Walton J at [2]
Sweeney J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. The aggregate sentences imposed in the District Court are quashed and in lieu thereof:
(a) for sequences 1, 2 and 3 the Applicant is sentenced to an aggregate sentence of 7 years imprisonment with a non-parole period of 3 years imprisonment commencing on 14 February 2019, the non-parole period expiring on 13 February 2022.
(b) for Counts 1, 2 and 3 the Applicant is sentenced to an aggregate sentence of 7 years imprisonment with a non-parole period of 3 years 6 months imprisonment commencing on 14 February 2022, the non-parole period expiring on 13 August 2025.
(c) the Applicant is eligible for release to parole at the conclusion of that non-parole period.

Catchwords:
CRIME — Appeals — Appeal against sentence — drug importation and supply offences — effect of mental illness on moral culpability and general deterrence — assessment of objective seriousness — appeal allowed — applicant resentenced

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Crimes Act 1914 (Cth)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
House v The King (1936) 55 CLR 499
Jeffree v R [2017] NSWCCA 72
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Mulato v R [2006] NSWCCA 282
R v Engert (1995) 84 A Crim R 67
R v SS (a pseudonym) [2022] NSWCCA 258
R v Verdins (2007) 16 VR 269
R v Wright (1997) 93 A Crim R 48

Texts Cited:
Nil

Category: Principal judgment
Parties: YM (Applicant)
Rex (Respondent)
Representation:
Counsel:
K Edwards (Applicant)
E Balodis (Respondent)
Solicitors:
Hugo Law Group (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/110680; 2019/50394
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 May 2021

Before:

Tupman DCJ

File Number(s):

2019/110680; 2019/50394

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Applicant operated a drug importation and supply scheme using the dark web. He pleaded guilty in the Local Court to three counts of importing a commercial quantity of a border controlled drug (the Commonwealth offences) and three counts of supplying a large commercial quantity of a prohibited drug (the State offences). A further 14 offences were taken into account on s 16BA schedules and Form 1 documents.

The Applicant suffered from long standing depression and anxiety which contributed to his offending. He received a 50% discount of his sentences.

The sentencing Judge imposed two aggregate offences which were partially accumulated; for the Commonwealth offences, one of 11…

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 YM v The King

Details

AGLC: YM v The King [2023] NSWCCA 75
Case: [2023] NSWCCA 75
Decision Date: 05 April 2023

CaseChat Overview and Summary

The appeal in YM v The King concerns a case where the applicant, YM, was convicted of drug importation and supply offences. YM appealed against the sentence imposed by the lower court, arguing that the effect of his mental illness should have been considered more heavily in assessing his moral culpability and the need for general deterrence. The appeal was heard by the High Court of Australia.

The primary legal issues before the Court were the extent to which mental illness should influence the assessment of moral culpability and general deterrence in sentencing, as well as how the objective seriousness of the crime should be evaluated in light of such mitigating factors. The Court was required to determine whether the lower court had appropriately balanced these considerations when imposing the sentence.

The High Court found that the lower court had not sufficiently considered the impact of YM's mental illness on his moral culpability and the purposes of general deterrence. The Court held that the sentencing process should take into account the diminished capacity to understand and control criminal behaviour due to mental illness. Additionally, the Court held that the objective seriousness of the crime needed to be assessed in the context of the offender's mental state. Consequently, the appeal was allowed, and YM was resentenced by the Court.

The final orders of the Court included a new sentence for YM, which reflected the appropriate consideration of his mental illness in relation to moral culpability and general deterrence. The Court's decision emphasised the importance of tailoring sentences to the individual circumstances of the offender, including mental health considerations.

Orders