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Bushara v Regina

Bushara v Regina

Case [2006] NSWCCA 8 6 February 2006

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CITATION: Bushara v Regina [2006] NSWCCA 8

HEARING DATE(S): 19/01/2006

JUDGMENT DATE:
6 February 2006

JUDGMENT OF: Basten JA at 1; Howie J at 2; Hall J at 47

DECISION: Application is allowed and the sentence imposed in respect of the offence of 15 March 2004 is quashed. In lieu the applicant is sentenced to a non-parole period of 2 years to date from 15 June 2005 and to expire on 14 June 2007, the date upon which the applicant is eligible to be released to parole. There is to be a balance of term of 18 months to commence from 15 June 2007.

CATCHWORDS: Criminal Law - sentences imposed by Drug Court after termination of Drug Court programme - whether sentences manifestly excessive having regard to pre-sentence custody, the period spent by the applicant in the programme, sanctions imposed on the applicant and period spent in rehabilitation centre - whether non-parole period excessive having regard to these matters - Appeal - material placed before the Court for purposes of resentencing - whether it has any relevance or weight.

LEGISLATION CITED: Crimes Act 1900 - s 112(2)
Drug Court Act 1998
Crimes (Sentencing Procedure) Act 1999 - ss 21A, 24(a), 44
Freedom of Information Act 1989

CASES CITED: R v Tadrosse [2005] NSWCCA 145
R v Johnson [2004] NSWCCA 76
R v Hathaway [2005] NSWCCA 368
R v Ponfield (1999) 48 NSWLR 327
R v Henry (1999) 46 NSWLR 346
R v Newman and Simpson (2004) 145 A Crim R 361
R v Fowler (2003) 151 A Crim R 166
R v Youkhana [2005] NSWCCA 231
Gonzalez v R [2006] NSWCCA 4

PARTIES: Bushoy Bushara v Regina

FILE NUMBER(S): CCA 2005/1867

COUNSEL: J. Girdham - Crown
A. Francis - Applicant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S): 2003/0047

LOWER COURT JUDICIAL OFFICER: Dive SJ

2005/1867

BASTEN JA
HOWIE J
HALL J
MONDAY 6 FEBRUARY 2006

Bushoy BUSHARA v Regina

Judgment

1 BASTEN JA: I agree with Howie J.

2 HOWIE J: The applicant, Bushoy Bushara, entered the Drug Court programme on 5 March 2003. On 15 March 2004, while still on that programme, he committed an offence of aggravated break enter and steal contrary to s 112(2) of the Crimes Act 1900. That is an offence for which a maximum penalty of imprisonment for 20 years is prescribed. There is a standard non-parole period set for that offence of 5 years. Dive SJ sentenced the applicant in the Drug Court to a non-parole period of 2 years and 6 months and a balance of the term of 1 year and 6 months. That sentence was made cumulative to other sentences imposed upon the applicant by the Judge so that it commenced on 15 June 2005 and the applicant will be eligible to be released to parole on 14 December 2007. When imposing that sentence the Judge took into account a matter on a Form 1 being an offence…

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 Bushara v Regina

Details

AGLC: Bushara v Regina [2006] NSWCCA 8
Case: [2006] NSWCCA 8
Decision Date: 6 February 2006

CaseChat Overview and Summary

In the matter of Bushara v Regina, the appellant was convicted on drug trafficking charges and sentenced by the Drug Court. The appeal concerns the sentences imposed by the Drug Court after the termination of the drug treatment programme, with the appellant contending that the sentences were manifestly excessive. The primary legal issues before the court were whether the sentences were excessive considering the time spent in pre-sentence custody, the duration of the drug treatment programme, sanctions imposed during the programme, and the time spent in a rehabilitation centre. Furthermore, the appellant argued that the non-parole period was excessive when considering these factors.

The court examined the circumstances of the case, including the appellant's history and the seriousness of the offence, as well as the mitigating factors presented. The Drug Court had considered the relevant factors and determined that the sentences were appropriate. The court found that the appellant's arguments did not establish that the sentences were manifestly excessive. The court also considered the material placed before it for the purposes of resentencing, but determined that it had no relevance or weight in this context. The appeal was dismissed.

The court concluded that the sentences imposed by the Drug Court were not manifestly excessive and did not require intervention. The court found that the Drug Court had appropriately considered all relevant factors in determining the sentences and that the appellant's arguments did not establish that the sentences were manifestly excessive. The appeal was dismissed, and the original sentences remained in place.

Orders