AYACHE, Baiyan v R [2013] NSWCCA 41

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AYACHE, Baiyan v R [2013] NSWCCA 41 Hearing dates: 12 December 2012 Decision date: 27 February 2013 Before: McClellan CJ at CL at 1 Rothman J at 2 Adamson J at 25 Decision: (1) Leave to appeal granted; (2) Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - discount for plea of guilty "about 25 percent" - no need for arithmetic precision in process of intuitive synthesis - manifest excess - sentence neither unreasonable nor plainly unjust - all factors taken into account - sentence within range - appeal dismissed Legislation Cited: Drug Misuse and Trafficking Act 1986 Cases Cited: Markarian v R [2005] HCA 25; (2006) 228 CLR 357 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Vuni v R [2006] NSWCCA 171 Category: Principal judgment Parties: Baiyan Ayache (Applicant) Regina (Respondent) Representation: Counsel: P Lange (Applicant) P G Ingram SC (Respondent) Solicitors: Hanna Legal (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2010/367333 Decision under appeal Date of Decision: 2011-11-18 00:00:00 Before: Sides DCJ File Number(s): 2010/367333

Judgment 1McCLELLAN CJ at CL: I agree with Rothman J. 2ROTHMAN J: The applicant, Baiyan Ayache, seeks leave to appeal a sentence imposed by the District Court on 18 November 2011. If leave were granted, the applicant appeals the sentence imposed on the same grounds as that upon which the applicant relies for the grant of leave. 3The applicant pleaded guilty to the supply of a prohibited drug (249.9 grams of methylamphetamine) in contravention of s 25(1) of the Drug Misuse and Trafficking Act 1986. The maximum penalty for such an offence is 15 years' imprisonment. The sentencing judge imposed a sentence of 5 years' imprisonment, with a non-parole period of 2 years commencing on 15 October 2011. 4There was one offence notified on a Form 1, being possession of prohibited drug (6.7 grams cannabis leaf). 5Two grounds of appeal are raised: (1)His Honour erred in not holding that the applicant was entitled to a discount of 25 per cent to reflect the utilitarian value of his plea; (2)The sentence imposed was manifestly excessive.