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Alpha v R

Alpha v R

Case [2015] NSWCCA 225 17 August 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alpha v R [2015] NSWCCA 225
Hearing dates: 17 August 2015
Decision date: 17 August 2015
Before: Leeming JA at [1];
Price J at [2];
R A Hulme J at [3]
Decision:
1. Extend time for the filing of the Notice of Application for Leave to Appeal to 2 June 2015; grant leave to appeal; and allow the appeal.
2. Quash the sentence imposed in the District Court on 17 October 2013 and in lieu, sentence the applicant to imprisonment for 6 years with a non-parole period of 3 years 8 months. The sentence is to date from 9 October 2012. The non-parole period will end on 8 June 2016 and the overall term will expire on 8 October 2018.
Catchwords:
CRIMINAL LAW – appeal against sentence – importing a marketable quantity of border controlled drug – 684 grams of cocaine – whether starting point of 12 years manifestly excessive – principles of sentencing for drug importation offences – application of guideline judgment in R v Wong and Leung (1999) 48 NSWLR 340 – relevance of quantity of drug - where applicant’s role greater than that of mere courier – no manifest excess established in starting point or resulting sentence
CRIMINAL LAW – appeal against sentence – importing a marketable quantity of border controlled drug – 684 grams of cocaine – where arithmetical error in applying discount for guilty plea and assistance conceded – re-exercise of sentencing discretion – total discount increased to 50 per cent – applicant re-sentenced
Legislation Cited: Crimes Act 1914 (Cth) s 16G
Criminal Appeal Act 1912 (NSW) s 6(3)
Criminal Code (Cth) s 307.2
Cases Cited: Adegoke v R [2013] NSWCCA 193; 234 A Crim R 280
Burns v R [2008] NSWCCA 260
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Kuti v R [2012] NSWCCA 43
McGeown v R [2014] NSWCCA 314
Minall and Watkins v R [2003] NSWCCA 311
R v Mas Rivadavia; R v El Akkaoui; R v Aksu [2004] NSWCCA 284; 61 NSWLR 63
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
R v Vasquez [2003] NSWCCA 94
R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340
Wong v The Queen [2001] HCA 64; 207 CLR 584
Young v R [2007] NSWCCA 114
Category: Principal judgment
Parties: “Alpha” (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr J Stratton SC with Ms F Graham (Applicant)
Mr Lenehan with Ms Bathurst (Crown)
Solicitors:
Hunter and Braddon Lawyers
Commonwealth Director of Public Prosecutions

File Number(s): 2012/312881
Publication restriction: Non-publication order made on 17 August 2015 in respect of the name of the applicant and alleged co-offenders, none of whom are named herein
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

17 October 2013

Before:

Lakatos DCJ

File Number(s):

2012/312881

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 Alpha v R

Details

AGLC: Alpha v R [2015] NSWCCA 225
Case: [2015] NSWCCA 225
Decision Date: 17 August 2015

CaseChat Overview and Summary

In the High Court of Australia, Alpha appealed against his sentence for importing 684 grams of cocaine. The nature of the appeal was to challenge the starting point of 12 years as manifestly excessive and the total discount applied to his sentence. The Court was tasked with determining whether the starting point and the overall sentence were appropriate, particularly in light of Alpha's role in the importation and the arithmetical error in applying the discount for his guilty plea and assistance.

The legal issues before the Court involved the principles of sentencing for drug importation offences, the relevance of the quantity of drugs, and the application of the guideline judgment in R v Wong and Leung. Specifically, the Court had to consider whether Alpha's role was greater than that of a mere courier, which would affect the starting point, and whether the total discount applied to his sentence was correct. The arithmetical error in the discount calculation was also a significant point of contention.

The Court concluded that the starting point of 12 years was not manifestly excessive, as Alpha's role in the importation was more than that of a mere courier. The total discount applied to the sentence was also found to be incorrect due to an arithmetical error. The Court increased the total discount to 50 percent and re-exercised its sentencing discretion, resulting in a re-sentence for Alpha. This decision highlights the importance of accurate calculations in sentencing and the need for a nuanced approach when considering the role of the offender in drug importation cases.

The final orders of the Court included the correction of the total discount applied to Alpha's sentence, increasing it to 50 percent. The Court also re-exercised its sentencing discretion, resulting in a new sentence for Alpha, which was not disclosed in the summary. This case underscores the importance of careful application of sentencing principles and accurate calculations in criminal cases involving drug importation.

Orders