Elliott v R [2018] NSWCCA 69

Elliott v R [2018] NSWCCA 69

The sentencing judge erred in relation to both counts. The finding that the applicant acted in company with Mr Dunn and Mr Kennedy in the supply of methamphetamine on Count 2 was either an impermissible aggravating finding made without procedural fairness or, in any event, a factual finding not open on the evidence. The finding that the ongoing supply count involved planned and organised criminal activity was also not open on the evidence, particularly where the agreed facts did not reveal a well-organised system and there was nothing particularly sophisticated about the applicant's involvement. The Court therefore resentenced the applicant.

Jurisdiction
Australia
Judgment Date
13 April 2018
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal
Outcome
Leave to appeal granted; appeal allowed; sentences quashed and new sentences imposed.
Legal Topics
['appeal Against Sentence' 'supply of Prohibited Drugs' 'ongoing Supply' 'aggravating Factors' 'in Company' 'planned or Organised Criminal Activity' 'procedural Fairness']
['criminal Law' 'sentencing' 'drug Offences'] ['appeal Against Sentence' 'supply of Prohibited Drugs' 'ongoing Supply' 'aggravating Factors' 'in Company' 'planned or Organised Criminal Activity' 'procedural Fairness']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding that the objective criminality of Count 2 was aggravated by having been committed in company and whether procedural fairness was denied by making that finding without notice.' 'Whether the sentencing judge erred in finding that the objective criminality of the ongoing supply count was aggravated because it involved planning and organised criminal activity as comprehended by s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the Court should exercise the sentencing discretion afresh after finding sentencing error.']

Ratio Decidendi

The sentencing judge erred in relation to both counts. The finding that the applicant acted in company with Mr Dunn and Mr Kennedy in the supply of methamphetamine on Count 2 was either an impermissible aggravating finding made without procedural fairness or, in any event, a factual finding not open on the evidence. The finding that the ongoing supply count involved planned and organised criminal activity was also not open on the evidence, particularly where the agreed facts did not reveal a well-organised system and there was nothing particularly sophisticated about the applicant's involvement. The Court therefore resentenced the applicant.

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed and new sentences imposed.

Orders

  • ['Grant leave to appeal against sentence.' 'Appeal allowed.' 'Quash the sentences imposed by North DCJ on 22 June 2017 and in lieu thereof, impose the following sentences: On Count 2, the charge of supply of 7.28 grams of methamphetamine, a fixed term of imprisonment of 18 months commencing 6 July 2016 and expiring...