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 sentencesLegislation 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:
Solicitors:
Mr Leslie Nicholls (applicant)
Ms Belinda Baker (respondent)
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
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PRICE J: I agree with Fagan J.
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BUTTON J: I agree with Fagan J.
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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.
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The applicant seeks leave to appeal against the severity of his sentence. On 4…
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- AGLC
- Cutajar v The Queen [2016] NSWCCA 222
- Case
- [2016] NSWCCA 222
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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