McBETH v R [2009] NSWCCA 235

McBETH v R [2009] NSWCCA 235

The sentencing Judge made findings that were open on the evidence, particularly the covertly recorded conversations showing the applicant's knowledge and role in substantial drug supply. No error was shown in the assessment of objective seriousness, use of the standard non-parole period, rejection of entrapment, standards of proof, partial accumulation, treatment of remorse, rehabilitation prospects, psychological evidence, subjective matters, or the $29,000 cash. Although the sentence was severe and more severe than the Judicial Commission statistics mentioned, the limits on the use of statistics and the absence of specific error meant appellate intervention was not warranted.

Jurisdiction
Australia
Judgment Date
16 September 2009
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal After Guilty Pleas and Sentence in the District Court
Outcome
Leave to appeal against sentence granted, but appeal dismissed.
Legal Topics
['supply of Prohibited Drug' 'supply of Commercial Quantity of Prohibited Drug' 'standard Non Parole Period' 'objective Seriousness' 'subjective Circumstances' 'manifest Excess' 'partial Accumulation' 'special Circumstances' 'use of Sentencing Statistics' 'entrapment' 'form 1 Matters']
['criminal Law' 'sentencing' 'drug Offences'] ['supply of Prohibited Drug' 'supply of Commercial Quantity of Prohibited Drug' 'standard Non Parole Period' 'objective Seriousness' 'subjective Circumstances' 'manifest Excess' 'partial Accumulation' 'special Circumstances' 'use of Sentencing Statistics' 'entrapment' 'form 1 Matters']

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal After Guilty Pleas and Sentence in the District Court

Legal Issues

  1. 1 ['Whether the sentencing Judge erred in assessing the objective seriousness of the commercial quantity offence as just above mid-range.' 'Whether the sentencing Judge placed too much emphasis on or misused the standard non-parole period.' 'Whether the sentencing Judge failed to take into account entrapment.' 'Whether the sentencing Judge made adverse findings of fact on the wrong standard of proof.' 'Whether the sentence for the agreed supply of cocaine should have been wholly concurrent with the sentence for the ecstasy supply.' "Whether the sentencing Judge erred in rejecting remorse, favourable prospects of rehabilitation, and the forensic psychologist's report." 'Whether the overall sentence was manifestly excessive.' 'Whether the finding concerning the $29,000 cash and forfeiture should be disturbed.']

Ratio Decidendi

The sentencing Judge made findings that were open on the evidence, particularly the covertly recorded conversations showing the applicant's knowledge and role in substantial drug supply. No error was shown in the assessment of objective seriousness, use of the standard non-parole period, rejection of entrapment, standards of proof, partial accumulation, treatment of remorse, rehabilitation prospects, psychological evidence, subjective matters, or the $29,000 cash. Although the sentence was severe and more severe than the Judicial Commission statistics mentioned, the limits on the use of statistics and the absence of specific error meant appellate intervention was not warranted.

Court Disposition

Leave to appeal against sentence granted, but appeal dismissed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal dismissed.']