Braithwaite v R - [2005] NSWCCA 451

CITATION:
BRAITHWAITE, Jarrett v. Regina [2005] NSWCCA 451

HEARING DATE(S): 14 December 2005

JUDGMENT DATE:

16 December 2005

JUDGMENT OF:
Hodgson JA at 1; McClellan CJ at CL at 32; Hall J at 33

DECISION:
1. Leave to appeal granted. 2. Appeal allowed, and sentences given below quashed. 3. On count 1, the applicant is sentenced to a non-parole period of 6 months to commence on 12 May 2005 and to expire on 11 November 2005, and an additional term of 12 months to commence on 12 November 2005 and expire on 11 November 2006. 4. On count 2, the applicant is sentenced to a non-parole period of 8 months to commence on 12 May 2005 and to expire on 11 January 2006, and an additional term of 16 months to commence on 12 January 2006 and to expire on 11 May 2007. 5. Order that the applicant be released to parole on 12 January 2006.

CATCHWORDS:
CRIMINAL LAW - Appeal against sentence - Offences of supply prohibited drug - Whether youth and immaturity of offender significant - Approach to suspending sentence - Whether sentences manifestly excessive.

CASES CITED:
Hearne [2001] NSWCCA 37, 124 A Crim R 451
Kaina [2000] NSWCCA 23, 110 A Crim R 47
R v. Foster [2001] NSWCCA 215
R v. GDP (1991) 53 A Crim R 112;
R. v. Knapp [2004] NSWCCA 419

PARTIES:
Jarrett Braithwaite - applicant
Regina - opponent

FILE NUMBER(S):
CCA 2005/1652

COUNSEL:
Ms. G. Bashir for appliclant
Mr. J. Bennett SC for opponent

SOLICITORS:
S. O'Connor for applicant
S. Kavanagh, Solicitor for Public Prosecutions for opponent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 05/11/0189

LOWER COURT JUDICIAL OFFICER:
English DCJ

CCA 2005/1652
DC 05/11/0189

HODGSON JA
McCLELLAN CJ at CL
HALL J
Friday 16 December 2005

Jarrett BRAITHWAITE V. Regina

Judgment

1 HODGSON JA: On 8 March 2005, the applicant pleaded guilty in the Downing Centre Local Court to two charges under s.25(1) of the Drugs Misuse & Trafficking Act 1985, in the following terms:

2 The maximum penalty for each offence was a fine of 2000 penalty units or 15 years’ imprisonment or both.

3 The applicant came before English DCJ for sentencing in May 2005, and adhered to his pleas of guilty. The sentencing judge was also asked to take into account two matters contained on a Form 1 Schedule, one count of possession of cannabis leaf contrary to s.10(1) of the Drugs Misuse & Trafficking Act 1985, the maximum penalty being a fine of 20 penalty units or two years’ imprisonment or both, and one count of goods in custody contrary to s.527C(1) of the Crimes Act 1900, the maximum penalty…

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 Braithwaite v R

Details

AGLC: Braithwaite v R [2005] NSWCCA 451
Case: [2005] NSWCCA 451
Decision Date: 16 December 2005

CaseChat Overview and Summary

Braithwaite was convicted of drug supply offences and sentenced to a term of imprisonment, with the sentences for each offence to be served consecutively. Braithwaite appealed against the sentence, arguing that the youth and immaturity of the offender were significant factors that warranted a more lenient sentence and that the sentences were manifestly excessive.

The legal issues before the court were whether the youth and immaturity of the offender were relevant considerations in the sentencing process and whether the sentences imposed were manifestly excessive. The court noted that while youth and immaturity could be relevant considerations, they were not the sole determining factors in sentencing. The court also considered the seriousness of the offences and the need to deter drug supply activities.

The court found that the sentences were not manifestly excessive and that the trial judge had appropriately considered the relevant factors in sentencing. The court noted that the offender had a prior criminal history and had supplied a significant quantity of drugs, which warranted a term of imprisonment. The court also found that the sentences were proportionate to the seriousness of the offences and that the trial judge had appropriately exercised their discretion in sentencing.

The appeal was dismissed, and the sentences imposed by the trial judge were affirmed.

Orders