DS v R [2014] NSWCCA 267

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DS v R [2014] NSWCCA 267 Hearing dates: 10 and 11 April 2014 Decision date: 28 November 2014 Before: Bathurst CJ; Fullerton J; Davies J Decision: 1.Appeal against conviction dismissed. 2.Grant leave to appeal against sentence. 3.The sentence imposed in the District Court on 27 July 2012 on Count 4 on the indictment is quashed. 4.In lieu thereof, a sentence of imprisonment of 14 years and 6 months is imposed, commencing on 11 March 2011 and expiring on 10 September 2025, comprising a non-parole period of 9 years and 6 months and an additional term of 5 years. 5.The appellant will become eligible for release on parole upon the expiration of the non-parole period on 10 September 2020. Catchwords: CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of possessing precursor where precursor and prohibited drug the same CRIMINAL - appeal - sentence - whether sentencing judge failed to consider delay between commission of offence and sentencing - failure to raise delay with sentencing judge - no explanation for failure provided on appeal - sentencing appeals are a reviewing of the exercise of a discretionary judgment not rehearing a plea in mitigation CRIMINAL - appeal - sentence - parity - whether discrepancy between sentences of co-offenders is disproportionate to relevant distinctions in roles played and subjective circumstances of co-offenders - whether disparity is gross, marked or glaring - difficulty when comparing sentences imposed with respect to different offences with different maximum penalties - difficulty where co-offender is charged with different offence with lower maximum penalty despite conduct being objectively more serious - need for sentences to reflect the different criminal culpability between co-offenders with more senior roles in the drug enterprise Legislation Cited: Criminal Code Act 1995 (Cth) Drug Misuse and Trafficking Act 1983 (NSW), ss 3, 24A, 25, 33, 33AB and Sch 1 Cases Cited: Crystal Lee England v R [2009] NSWCCA 274 ES v R [2014] NSWCCA 268 Gill v R [2010] NSWCCA 236 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Ibrahim Jidah v R [2014] NSWCCA 269 Lachlan Wilson v R [2014] NSWCCA 266 Pym v R [2014] NSWCCA 182 R v Todd [1982] 2 NSWLR 517 Yousef Jidah v R [2014] NSWCCA 270 Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: DS (Appellant) Crown (Respondent) Representation: Counsel: C Steirn SC (Appellant) I D Bourke / M England (Crown) Solicitors: Meridian Legal (Appellant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2008/209593 Decision under appeal Before: Frearson SC DCJ File Number(s): 2008/209593