C v R

Case [2013] NSWCCA 81 22 April 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: C v R [2013] NSWCCA 81
Hearing dates: 13 February 2013
Decision date: 22 April 2013
Before: Hoeben JA at [1]
Adams J at [49]
Beech-Jones J at [50]
Decision:
Leave to appeal is granted.
The appeal is allowed.
The sentence imposed by her Honour on 28 October 2011 is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 9 years to date from 4 July 2010 and to expire on 3 July 2019 with a balance of term of 5 years and 3 months, expiring 3 October 2024.

Catchwords: CRIMINAL LAW - sentence appeal - attempt to possess 60 kgs of cocaine - cocaine imported from Mexico - applicant entered Australia on instructions from cartel to take possession of cocaine - when arrested, applicant admitted offence and provided assistance to authorities - applicant received discount for early plea of guilty and assistance to authorities - whether sufficient discount given for assistance to authorities - assistance significant - life of applicant and family placed at risk by assistance - conditions of imprisonment made more difficult because in protection - discount for assistance insufficient - need for applicant to be re-sentenced.
Legislation Cited: Crimes Act 1914 (Cth) - s 16A(1); s 16(2)(g)
Crimes (Sentencing Procedure) Act 1999 (NSW) - s 23(3)
Criminal Code (Cth) - 314.4, 307.8(1)
Cases Cited: Cameron v R [2002] HCA 6; 209 CLR 339
Charkawi v R [2008] NSWCCA 159
R V Bugeja [2001] NSWCCA 196
R v Charman [2007] NSWSC 1177
R v Chu [1998] NSWSC 568
R v DW [2012] NSWCCA 66
R v El Hani [2004] NSWCCA 162
R v Lenati [2008] NSWCCA 67
R v NP [2003] NSWCCA 195
R v Standen [2011] NSWSC 1422
R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151
SZ v Regina [2007] NSWCCA 19; I68 A Crim R 249
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Tiknius v R [2011] NSWCCA 215
Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
Category: Principal judgment
Parties: C - Applicant
Commonwealth Crown - Respondent
Representation: Counsel:
Mr H Dhanji SC - Applicant
Mr L Crowley - Commonwealth Respondent Crown
Solicitors:
William O'Brien & Ross Hudson Solicitors - Applicant
Commonwealth Director of Public Prosecutions - Respondent

File Number(s): 2010/232160
Decision under appeal

Date of Decision:

2011-10-28 00:00:00

Before:

Hock DCJ

File Number(s):

2010/232160

Judgment

HOEBEN JA:

Offence and sentence

The applicant pleaded guilty in the Local Court to a charge that:

At 9.58 4 July 2010 at Baulkham Hills the accused did attempt to possess a substance, being a substance that is reasonably suspected of being unlawfully imported, the substance being a border control drug, namely cocaine, and the quantity possessed being a commercial quantity contrary to subs 307.8(1) of the Criminal Code (Cth).

The maximum penalty for this offence is imprisonment for life…

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 C v R

Details

AGLC: C v R [2013] NSWCCA 81
Case: [2013] NSWCCA 81
Decision Date: 22 April 2013

CaseChat Overview and Summary

The case of C v R involved the applicant, who was appealing against his sentence for attempting to possess 60 kilograms of cocaine. The cocaine had been imported from Mexico, and the applicant had entered Australia on instructions from a cartel to take possession of the drugs. Upon his arrest, the applicant admitted his offence and provided substantial assistance to the authorities. The applicant argued that the discount he received for his early plea of guilty and assistance to authorities was insufficient.

The primary legal issue before the court was whether the applicant had received an appropriate discount for his assistance to the authorities. The court considered the significant assistance provided by the applicant, which included placing his life and the lives of his family at risk. The court also considered the impact of the applicant's imprisonment conditions, which were made more difficult because he was in a protection program. The court found that the discount given to the applicant for his assistance was insufficient, and that a re-sentencing was necessary.

The court concluded that the applicant's assistance was of a high degree of significance, and that the discount he received did not adequately reflect the level of assistance provided. The court noted that the applicant's assistance had placed his life and the lives of his family at risk, and that his conditions of imprisonment had been made more difficult because he was in a protection program. The court determined that the applicant's assistance was significant and warranted a greater discount than had been given. The court ordered that the applicant be re-sentenced to reflect the significant assistance provided.

Orders