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Alpha v R

Alpha v R

Case [2013] NSWCCA 292 28 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alpha v R [2013] NSWCCA 292
Hearing dates: 8 November 2013
Decision date: 28 November 2013
Before: Leeming JA [1]
Bellew J [3]
RS Hulme AJ [80]
Decision:
(i) The application for an extension of time in which to seek leave to appeal is dismissed.

Catchwords:
CRIMINAL LAW - appeal - practice and procedure - where substantial delay in filing notice of intention to appeal - where extension of time required - where delay not adequately explained - principles to be applied in determining an application for an extension of time
CRIMINAL LAW - appeal - where asserted disparity in sentence imposed upon the applicant when compared with sentences imposed on co-offenders - where applicant and co-offenders were part of a conspiracy to import a substantial quantity of MDMA -where applicant's role found by the sentencing judge to be greater than that of co-conspirators - where finding not challenged - principles to be applied in assessing the role of conspirators - necessity to go beyond isolated overt acts in which a conspirator may have engaged - where sentencing judge adopted a starting point in sentencing the applicant which was 9 years higher than that adopted in the case of co-offenders - no justifiable sense of grievance - no substantial injustice arising from the sentence imposed - application for extension of time dismissed
Legislation Cited: Criminal Code 1995 (Cth)
Firearms Act 1996 NSW
Weapons Prohibition Act 1998 NSW
Cases Cited: Abdul v R [2013] NSWCCA 247
Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 27
Gill v R [2010] NSWCCA 236
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
Lowe v R (1984) 154 CLR 606
McCraw v R [2011] NSWCCA 162
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Pavicevic v R [2010] ACTCA 25
R v Spizzerri [2001] VSCA 49
R v Swan [2006] NSWCCA 47
Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
Tatana v R [2006] NSWCCA 398
Tyler v R; R v Chalmers [2007] NSWCCA 247
Winter v R [2013] NSWCCA 231
Category: Principal judgment
Parties: Alpha - Applicant
Crown - Respondent
Representation: Counsel:
W P Lowe and S Milanovic - Applicant
C O'Donnell - Respondent
Solicitors:

File Number(s): 2008/16246003
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-04-09 00:00:00

Before:

Lakatos SC DCJ

Judgment

LEEMING JA: I agree with Bellew J's reasons for dismissing this application. In particular, I agree with his Honour that the approach stated by this Court in Abdul v R [2013] NSWCCA 247 at [53] is to be applied to all cases in which an extension of time is sought. That approach requires regard to be had to all relevant factors: the extent of and explanation for the delay, the interests of the community and the victim, and also whether substantial injustice would result if the extension…

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 [2013] NSWCCA 292
Case: [2013] NSWCCA 292
Decision Date: 28 November 2013

CaseChat Overview and Summary

The case of Alpha v R involved an appeal against the sentence imposed on the applicant, who was found guilty of being part of a conspiracy to import a substantial quantity of MDMA. The applicant sought an extension of time to file a notice of appeal, citing a substantial delay. Additionally, the applicant challenged the disparity in the sentence imposed upon them compared to their co-offenders, arguing that their role in the conspiracy was not significantly different.

The court had to determine whether to grant an extension of time for the filing of the notice of appeal, considering the delay and the adequacy of the explanation provided. The court also needed to assess whether the disparity in sentencing was justified, given the applicant's role in the conspiracy and the sentences imposed on co-conspirators. The court examined whether the sentencing judge correctly identified the applicant's role and applied the appropriate principles in sentencing.

The court found that the delay in filing the notice of appeal was not adequately explained, and therefore, the application for an extension of time was dismissed. In assessing the sentence, the court held that the sentencing judge had correctly identified the applicant's role as greater than that of the co-conspirators. The starting point for sentencing was 9 years higher for the applicant, which the court found to be justified based on the evidence and principles applied. The court concluded that there was no substantial injustice arising from the sentence imposed and no justifiable sense of grievance.

No orders were made regarding the extension of time, and the appeal against the sentence was dismissed.

Orders