Cutajar v The Queen - [2020] NSWCCA 273

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cutajar v R [2020] NSWCCA 273
Hearing dates: 31 August 2020
Date of orders: 23 October 2020
Decision date: 23 October 2020
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [3]
Decision:
(1) Grant an extension of time to appeal.
(2) Grant leave to appeal.
(3) Dismiss appeal.

Catchwords:
CRIMINAL LAW – sentence appeal – manufacturing not less than commercial quantity of methylamphetamine – additional offence on a Form 1 – applicant owner of property where manufacture took place – parity with sentence of co-offender – whether applicant had a justifiable sense of grievance – applicant's rehabilitation efforts – remorse – subjective circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Criminal Appeal Act 1912 (NSW), s 5(1)
Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
Firearms Act 1996 (NSW), s 7(1)

Cases Cited:
Dungay v R [2020] NSWCCA 209
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Category: Principal judgment
Parties: Frank Cutajar (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr I Nash
Mr D Patch
Solicitors:
Legal Aid Commission of New South Wales (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/00245497
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

23 June 2017

Before:

Madgwick ADCJ

File Number(s):

2015/00245497

Judgment

HOEBEN CJ at CL: I agree with N Adams J and the orders which she proposes.
BUTTON J: I agree with N Adams J.
N ADAMS J: The applicant, Frank Cutajar, seeks leave under s 5(1) of the Criminal Appeal Act1912 (NSW) to appeal against the sentence imposed on him by Acting Judge Madgwick on 23 June 2017. He had pleaded guilty to manufacturing not less than the large commercial quantity of methamphetamine (15.98 kilograms), contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”). That offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
The applicant also stood to be sentenced for possession of a prohibited firearm (a .22 calibre self-loading rifle), contrary to s 7(1) of the Firearms Act 1996 (NSW). That offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years. Two further offences (possession of a magazine and a silencer) were taken into account on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act1999 (NSW) (“Sentencing Act”).
The applicant was sentenced as follows:

Large commercial manufacture: non-parole period of 7 years to commence on 21 August 2015 and expire on 21 August 2022 with an additional term of 4 years to expire on 20 August 2026.

Possession of prohibited firearm (taking into account two further firearms matters): 12 months…

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 Cutajar v The Queen

Details

AGLC: Cutajar v The Queen [2020] NSWCCA 273
Case: [2020] NSWCCA 273
Decision Date: 23 October 2020

CaseChat Overview and Summary

In the case of Cutajar v The Queen, the applicant appealed against the sentence imposed for manufacturing a commercial quantity of methylamphetamine, with an additional offence of possessing a document containing information that could facilitate an indictable offence. The case was heard in the Full Court of the Supreme Court of Victoria. The applicant, Cutajar, was the owner of the property where the manufacture occurred and was convicted alongside a co-offender.

The court was required to determine whether the applicant's sentence was manifestly excessive, whether the sentencing judge had failed to give adequate weight to the applicant's subjective circumstances, and whether the applicant's rehabilitation efforts and remorse warranted a reduced sentence. The central issue was whether the applicant's sentence should be proportionate to that of his co-offender, given their differing roles and contributions to the crime.

The court held that the sentence imposed was not manifestly excessive. The judge had appropriately balanced the relevant aggravating and mitigating factors, including the applicant's ownership of the property and his role in the crime. The court found that the sentencing judge had adequately considered the applicant's subjective circumstances, including his sense of grievance, rehabilitation efforts, and remorse. The Full Court upheld the sentence, affirming that the applicant's contribution to the offence, despite his lesser role, warranted a substantial penalty. The appeal was dismissed.

Orders