CTC v Regina - [2006] NSWCCA 263

CITATION: CTC v Regina [2006] NSWCCA 263
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21/8/06

JUDGMENT DATE:
6 September 2006

JUDGMENT OF: Grove J at 1; Kirby J at 2; Hislop J at 43

DECISION: Leave to appeal granted, but the appeal dismissed.

CATCHWORDS: Criminal Practice & Procedure - appeal against severity of sentence - discount for plea of guilty - negotiations with Crown - fresh indictment - assistance - relevance of sentences of co-offenders where no parity - whether manifestly excessive.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Sukkar [2006] NSWCCA 92
Atholwood v R (1999) 109 A Crim R 465
Cameron v The Queen (2002) 209 CLR 339
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295

PARTIES: CTC (App)
Regina (Resp)

FILE NUMBER(S): CCA 2006/865

COUNSEL: G K Walsh (App)
W Dawe QC (Crown/Resp)

SOLICITORS: The Law Practice (App)
S Kavanagh (Crown/Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0701

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 26/8/05

2006/865

GROVE J
KIRBY J
HISLOP J
Wednesday 6 September 2006

CTC v REGINA

Judgment

1 GROVE J: I agree with Kirby J.

2 KIRBY J: This is an application for leave to appeal against sentence. On 24 July 2003, the applicant, who will be given the pseudonym "CTC", was arrested and charged with the supply of a large commercial quantity of heroin. He was taken into custody. On 18 April 2005 he pleaded guilty to an indictment expressed in these terms:

"Between 20 July 2003 and 25 July 2003, at Sydney, in the State of New South Wales, [he] did supply a prohibited drug, namely heroin, in an amount of 2.032 kilograms, being an amount not less than the large commercial quantity applicable to that prohibited drug."

3 Under the Drug Misuse and Trafficking Act 1985, s25(2), the maximum penalty in respect of that offence is imprisonment for life and/or a fine of $550,000. Under s54B of the Crimes (Sentencing Procedure) Act 1999, and the table in Division 1A of the Act, a standard non parole period has been fixed of 15 years imprisonment.

4 On 26 August 2005, Berman DCJ sentenced the applicant to a term of imprisonment of 8½ years, consisting of a non parole period of 5½ years (24.2.03 to 23.1.09) and an additional term of 3 years (24.1.09 to 23.1.12).

The Notice of Appeal.

5 The notice seeking leave to appeal identified the following grounds of appeal:

Ground 1:

Ground 2: Insufficient weight was given to the assistance provided by the applicant.

Ground 3: The applicant has a justifiable sense of grievance by lack of parity with the sentence received by Ching Sum Chan.

Ground 4: Insufficient weight was given to the subjective issues raised by the…

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 CTC v Regina

Details

AGLC: CTC v Regina [2006] NSWCCA 263
Case: [2006] NSWCCA 263
Decision Date: 6 September 2006

CaseChat Overview and Summary

The case of CTC v Regina involved an appeal against the severity of the sentence imposed on the appellant. The appellant was convicted of various criminal charges and sought to have the sentence reduced on the grounds that it was manifestly excessive. The appeal was heard in the relevant court, which had to determine whether the discount for the plea of guilty, the negotiations with the Crown, the assistance provided, and the sentences of co-offenders should have influenced the sentencing decision. The court was tasked with evaluating whether the sentence was proportionate and whether the factors considered by the lower court warranted a reduction in the sentence.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. This involved examining the principles of sentencing, the discount for the plea of guilty, the relevance of negotiations with the Crown, the assistance provided by the appellant, and the comparison of sentences with those of co-offenders. The court needed to assess whether the totality of these factors, including the absence of parity in sentences among co-offenders, justified a reduction in the sentence.

In its reasoning, the court acknowledged the principles of sentencing that require proportionality and the consideration of mitigating factors. It found that while the appellant had pleaded guilty, the discount for this plea was appropriately considered by the lower court. The court also noted that the negotiations with the Crown and the assistance provided by the appellant were relevant factors that could influence the sentence. However, the court held that the absence of parity in sentences among co-offenders did not automatically render the sentence manifestly excessive. After a thorough review of the case, the court concluded that the sentence was proportionate and did not meet the threshold for being manifestly excessive.

The court ultimately dismissed the appeal and upheld the sentence imposed by the lower court. The final orders confirmed that the sentence would remain in effect, and the appeal was without merit.

Orders