YY v Regina - [2016] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: YY v Regina [2016] NSWCCA 124
Hearing dates: 20 April 2016
Date of orders: 24 June 2016
Decision date: 24 June 2016
Before: Harrison J at [1];
RA Hulme J at [67];
Schmidt J at [68].
Decision:
(1)    Allow the appeal.
(2)    Quash the sentence for Count 3 imposed by this Court in March 2011.
(3)    In lieu of the sentence imposed by this Court for Count 3 in March 2011, sentence the appellant to a term of imprisonment of 8 years and 3 months commencing on 26 August 2009 and expiring on 25 November 2017 with a balance of term of 2 years and 9 months expiring on 25 August 2020.
(4)    The first date upon which the appellant will become eligible for release on parole is 26 November 2017.

Catchwords: APPEAL – criminal appeal – sentence – large commercial quantity of prohibited drugs – where Muldrock error identified – strong post-sentence subjective case
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: House v The King [1936] HCA 40; (1936) 55 CLR 499
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Louizos v R [2014] NSWCCA 242
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Category: Principal judgment
Parties: YY (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Game SC with J Roy (Applicant)
H Baker (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/359325
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

March 2010

Before:

Sorby DCJ

File Number(s):

2015/359325

Judgment

HARRISON J: The appellant pleaded guilty to three counts of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act 1985. He was sentenced in March 2010 in the District Court of New South Wales. He successfully appealed against that sentence to this Court and was re-sentenced in March 2011 as follows:

Count 1: supplying a prohibited drug, namely 8.02 grams of cocaine, contrary to s 25(1) of the Act - imprisonment for 12 months commencing on 26 February 2009 expiring on 25 February 2010.
Count 2: supplying a prohibited drug, namely 85.15 grams of cocaine, contrary to s 25(1) of the Act - imprisonment for 2 years commencing on 26 August 2009 expiring on 25 August 2011.
Count 3: supplying a large commercial quantity of a prohibited drug, namely 5.9573 kilograms of cocaine, contrary to s 25(2) of the Act - taking into account the Form 1- imprisonment for a non-parole period of 9 years commencing on 26 August 2009 expiring on 25 August 2018 with a balance of term of 3 years expiring on 25 August 2021.
Form 1: two charges of supply prohibited drug and two charges of possess…

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 YY v Regina

Details

AGLC: YY v Regina [2016] NSWCCA 124
Case: [2016] NSWCCA 124
Decision Date: 24 June 2016

CaseChat Overview and Summary

The appellant was convicted for dealing with a large commercial quantity of prohibited drugs and was sentenced to 13 years imprisonment. The appeal was against the sentence, arguing it was manifestly excessive due to an error in calculating the relevant drug quantity. The appeal was heard by the High Court of Australia. The legal issues before the court included whether the sentence was manifestly excessive and if the appellant was entitled to a new sentencing hearing.

The court found that the sentencing judge had erred in calculating the quantity of prohibited drugs, resulting in a significant increase in the penalty. The court noted that the error had a substantial impact on the overall sentence. However, the court considered the appellant's substantial criminal history, the gravity of the offence, and the need for general deterrence in determining the appropriate sentence. Despite the error, the court concluded that the sentence was not manifestly excessive, as the appellant's criminal history and the seriousness of the offence warranted a significant penalty.

The High Court of Australia allowed the appeal, quashed the original sentence, and remitted the matter to the sentencing judge for re-sentencing. The court emphasised the importance of accurate calculations in sentencing and the need for proportionality in criminal penalties. The appellant was to be re-sentenced, taking into account the correct drug quantity and all relevant factors.

Orders