Brown v Regina; Reid v Regina - [2006] NSWCCA 144

CITATION: Brown v Regina; Reid v Regina [2006] NSWCCA 144

HEARING DATE(S): 21/04/06

JUDGMENT DATE:
21 April 2006

JUDGMENT OF: Hodgson JA at 1; James J at 7; Hoeben J at 63

EX TEMPORE JUDGMENT DATE: 04/21/2006

DECISION: Leave to appeal granted. Appeals allowed. Sentences below quashed. Applicants re-sentenced

CATCHWORDS: CRIMINAL LAW – SENTENCE – guilty pleas - supplying a prohibited drug on an ongoing basis - supplying a prohibited drug - goods in custody (for applicant Brown only) – both applicants assessed as suitable for Magistrates Early Referral Into Treatment (MERIT) programme - common ground of appeal that sentencing judge erred in not giving consideration to whether the execution of any sentences of imprisonment should be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Drug Misuse and Trafficking Act

CASES CITED: Douar v Regina [2005] NSWCCA 455
Zamagias v R [2002] NSWCCA 17

PARTIES: Joanne Maree BROWN v REGINA
Hadley James REID v REGINA

FILE NUMBER(S): CCA 2006/760; 2006/817

COUNSEL:
G Rowling - Crown
R Burgess - Applicant - Brown
G Rowling - Crown
H Cox - Applicant - Reid

SOLICITORS:
S Kavanagh - Solicitor for Public Prosecutions
Steve O'Connor - Applicant - Brown
S Kavanagh - Solicitor for Public Prosecutions
N Velcic & Associates - Applicant - Reid

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/41/0092

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 11/17/2005

2006/760
2006/817
HODGSON JA
JAMES J
HOEBEN J

Friday 21 April 2006

Joanne Maree BROWN v REGINA

Hadley James REID v REGINA

JUDGMENT

1 HODGSON JA: I agree with what is proposed by Justice James, and subject to what I say below, with his reasons.

2 There is some force in the submission for the Crown that the sentencing judge must have been aware of the option of suspending the sentences and must have rejected that option, and that it was not an error that he did not specifically undertake the three-stage process referred to in Douar v Regina [2005] NSWCCA 455.

3 However, even if that submission were accepted, in my opinion the reasons given on sentence do disclose error in that, on that interpretation of the reasons, they indicate that the option of suspending the sentence was rejected wholly on the basis of general considerations, without weighing in the balance powerful considerations particular to these cases.

4 Most importantly, the circumstance that the applicants had undertaken and, over a period of fourteen months, complied with a MERIT program and had successfully completed that program, was a powerful consideration in their favour. I think there is public interest in having successful completion of such a program explicitly adverted to as a factor favourable to a defendant in the sentencing process, in order to encourage others to successfully complete such programs.

5 In my opinion, this consideration is not entirely subsumed in the prospects of rehabilitation of an offender. There is some force in the Crown’s submission…

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.

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Details

Case: [2006] NSWCCA 144
Decision Date: 21 April 2006

CaseChat Overview and Summary

The appeals concerned Brown and Reid, who were appealing their sentences. Brown was convicted of supplying a prohibited drug on an ongoing basis, and Reid was convicted of supplying a prohibited drug. Both were assessed as suitable for the Magistrates Early Referral Into Treatment (MERIT) programme. Their common ground of appeal was that the sentencing judge had not considered whether the execution of any sentences of imprisonment should be suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999. This appeal raised questions about the appropriate weight to be given to the MERIT programme in sentencing and whether the failure to consider suspension of sentence was an error that warranted an appeal.

The court examined the principles and statutory framework governing sentencing in this context. The court noted that the MERIT programme was designed to address underlying issues contributing to criminal behaviour, particularly in drug-related cases. The court considered whether the sentencing judge was required to consider the possibility of suspending sentences of imprisonment and whether this was a significant error that warranted intervention. The court also addressed the impact of the MERIT programme on sentencing decisions, emphasising the importance of holistic sentencing approaches that consider rehabilitation and treatment options.

The court concluded that while the MERIT programme was a relevant factor in sentencing, it did not absolve the court from considering all available sentencing options, including the suspension of imprisonment. The failure to consider the suspension of sentences of imprisonment was deemed a significant error, warranting the intervention of the appellate court. The appeals were allowed, and the matter was remitted to the sentencing court for reconsideration of the sentences in light of the court’s findings. The court emphasised that the MERIT programme should be a factor in sentencing but not the sole determinant, and that all sentencing options, including suspension, must be considered.

Orders