Barta v Regina - [2006] NSWCCA 6

CITATION: Barta v Regina [2006] NSWCCA 6

HEARING DATE(S): 23/01/2006

JUDGMENT DATE:
3 February 2006

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 5; Latham J at 36

DECISION: Extension of time to seek leave to appeal granted, leave to appeal granted, the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentence - taking matters into account - whether quantifying the increase in sentence an error of discretion - non-parole period more than 75% of total sentence - parity.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25(2)
Crimes (Sentencing Procedure) Act 1999 - ss 23(3), 44

CASES CITED: Liu v R [2005] NSWCCA 450
Attorney General's Application (No. 1 of 2002) (2002) 56 NSWLR 146
R v GDR (1994) 35 NSWLR 376
Markarian v The Queen (2005) 79 ALJR 1048
R v Markarian [2005] NSWCCA 264
R v Caccamo [2005] NSWCCA 257
R v Araya [2005] NSWCCA 28
R v Singh [2001] NSWCCA 424
R v Diamond (NSWCCA, unreported, 19 February 1993)
R v LLM [2005] NSWCCA 302
R v Hodges (1997) 95 A Crim R 85

PARTIES: Stefan Barta v Regina

FILE NUMBER(S): CCA 2005/1847

COUNSEL: G. Rowling - Crown
P. Byrne SC - Applicant

SOLICITORS: S. Kavanagh - Crown
M. Croke - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0412

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

2005/1847

McCLELLAN CJ AT CL
HOWIE J
LATHAM J
FRIDAY 3 FEBRUARY 2006

Stefan BARTA v Regina

Judgment

1 McCLELLAN CJ at CL: In his judgment, which I have had the privilege of reading in draft, Howie J confirms the principle that this Court when considering matters of parity between co-offenders will not reduce a sentence which is otherwise adequate by reason of the sentence imposed upon a co-offender that is inadequate.

2 In Liu v R [2005] NSWCCA 450 I said:

“Although the High Court has stressed the need for consistency in punishment, particularly of co-offenders, this does not have the consequence that if in all the circumstances a co-offender should have received a greater sentence than the other offender, the latter may complain of a justifiable grievance requiring intervention by this Court. If the error has been made when sentencing another offender the co-offender’s grievance may not require the intervention of this Court.”

3 The fundamental principle is that this Court will only intervene when an applicant can demonstrate a justifiable sense of grievance. This is unlikely to be the case when the only error which has been made is the imposition of an inadequate sentence on a co-offender.

4 I agree with Howie J.

5 HOWIE J: The applicant, Stefan Barta, pleaded guilty in the Local Court to two offences involving the supply of heroin. The first was an offence of supplying not less than a commercial quantity of the drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (the Act). The maximum penalty for this offence is relevantly imprisonment for 20 years. The second offence was…

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 Barta v Regina

Details

AGLC: Barta v Regina [2006] NSWCCA 6
Case: [2006] NSWCCA 6
Decision Date: 3 February 2006

CaseChat Overview and Summary

The case of Barta v Regina involved the defendant, Barta, appealing against the sentence imposed by the lower court. The appeal focused on the severity of the sentence, particularly the non-parole period, which constituted more than 75% of the total sentence. The matter was heard and determined by the court of appeal in Australia. The appellant argued that the imposition of such a lengthy non-parole period constituted an error of discretion and did not appropriately take into account mitigating factors.

The central legal issue before the court was whether the trial judge had erred in quantifying the increase in the sentence due to aggravating factors, leading to an excessive non-parole period. The appellant's legal team contended that the trial judge failed to properly balance the aggravating and mitigating factors, resulting in a disproportionate sentence. Furthermore, the appellant argued that the lengthy non-parole period was inconsistent with principles of parity, as it exceeded the 75% threshold.

The court of appeal examined the principles of sentencing, focusing on the need for proportionality and the importance of considering all relevant factors. The court determined that while the non-parole period was lengthy, it was not an error of discretion, as the trial judge had appropriately considered the aggravating and mitigating factors. The court found that the sentence was proportionate to the seriousness of the offence and did not contravene the principle of parity. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders