Cutajar v The Queen - [2016] NSWCCA 222

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cutajar v R [2016] NSWCCA 222
Hearing dates: 19 September 2016
Date of orders: 19 September 2016
Decision date: 19 September 2016
Before: Price J at [1], [23];
Button J at [2];
Fagan J at [3].
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeal against sentence – aggregate sentence – offences against Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1), 25(1) – possession of prohibited weapon – rejection of evidence of offender by sentencing judge – whether adequate reasons
CRIMINAL LAW – appeal against sentence – whether manifest excess – comparable sentences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Weapons Prohibition Act 1998 (NSW)
Cases Cited: Dang v R [2014] NSWCCA 47
Farkas v R [2014] NSWCCA 141; (2014) 243 A Crim R 388
Fayd’Herbe v R [2007] NSWCCA 20
R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
Smaragdis v R [2010] NSWCCA 276
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
R v Andrew Cutajar (District Court (NSW), 4 September 2015, unrep)
Category: Principal judgment
Parties: Andrew Cutajar (applicant)
Regina (respondent)
Representation:
Counsel:
Mr Leslie Nicholls (applicant)
Ms Belinda Baker (respondent)
Solicitors:
Mr Danny Eid, Danny Eid Lawyers (applicant)
Mr Craig Hyland, Office of the Director of Public Prosecutions (respondent)

File Number(s): 2014/188908
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

4 September 2015

Before:

M L Williams SC DCJ

File Number(s):

2014/188908

Judgment

PRICE J: I agree with Fagan J.
BUTTON J: I agree with Fagan J.
FAGAN J: The applicant pleaded guilty in the District Court to the following charges which carried maximum penalties as indicated.

Ongoing supply of prohibited drugs contrary to s 25A(1) of the Drug Misuse and Trafficking Act1985 (NSW) between 12 February 2014 and 13 March 2014. The particulars were supply of about 14 grams or half an ounce of cocaine on each of four separate dates in the charge period together with a smaller quantity, 3.3 grams, of another drug on one of the dates. The maximum penalty for this offence is 20 years imprisonment or 3,500 penalty units or both.

Supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act on 25 June 2014. The particulars of this offence were a supply of 12.6 grams of methylamphetamine. The maximum penalty is 15 years or 2,000 penalty units or both.

Possession of a prohibited weapon on 25 June 2014 contrary to s 7(1) of the Weapons Prohibition Act1998 (NSW). The applicant had in his possession at his home two flick knives at the time of his arrest on the drug charges. The maximum penalty for this offence is 14 years imprisonment.

The applicant seeks leave to appeal against the severity of his sentence. On 4…

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 [2016] NSWCCA 222
Case: [2016] NSWCCA 222
Decision Date: 19 September 2016

CaseChat Overview and Summary

In Cutajar v The Queen, the appellant was convicted of multiple drug-related offences under the Drug Misuse and Trafficking Act 1985 (NSW). The appellant appealed against the aggregate sentence imposed, arguing that the sentencing judge's rejection of the evidence of the offender was not adequately reasoned. The case was heard by the High Court of Australia.

The central legal issues addressed by the court were whether the sentencing judge provided adequate reasons for rejecting the evidence of the offender and whether the aggregate sentence imposed by the primary judge was a manifest excess of the maximum penalty for the offences. The court also considered whether the sentence was comparable to sentences imposed in similar cases.

The High Court found that the sentencing judge had failed to provide adequate reasons for rejecting the evidence of the offender. However, the court held that this error did not warrant a new trial or sentence because the evidence was not critical to the outcome of the case. Regarding the aggregate sentence, the court concluded that it was not a manifest excess of the maximum penalty and was comparable to sentences imposed in similar cases. Consequently, the appeal against sentence was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the primary judge was upheld.

Orders