McClellan CJ at CL at [1], [35], [38]; James J at [2]; Barr J at [37]
EX TEMPORE JUDGMENT DATE:
31 January 2008
DECISION:
Grant an extension of time in which to apply for leave to appeal against sentence to the date on which the application for leave to appeal against sentence was filed. Grant leave to appeal against sentence but dismiss the appeal against sentence.
CATCHWORDS:
CRIMINAL LAW — Sentencing — Commonwealth offence — pre-sentence custody — willingness to facilitate the course of justice — strength of Crown case
M Thangaraj (Appellant) M A Wigney SC (Respondent)
SOLICITORS:
Nyman Gibson Stewart (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
06/11/0639
LOWER COURTJUDICIAL OFFICER:
Geraghty DCJ
LOWER COURT DATE OF DECISION:
18 January 2007
2007/2836
McCLELLAN CJ at CL JAMES J BARR J
THURSDAY 31 JANUARY 2008
DANIAL, Fawzieh Nona v R
Judgment
1 McCLELLAN CJ at CL: The Court is in a position to give judgment now and I will ask Justice James to deliver the first judgment.
2 JAMES J: Fawzieh Nona Danial has applied for an extension of time in which to apply for leave to appeal and for leave to appeal against a sentence imposed upon her in the District Court on 18 January 2007 by his Honour Judge Geraghty, on a charge of importing a marketable quantity of a border controlled drug, namely heroin, to which she had pleaded guilty.
3 Importing a marketable quantity of a border-controlled drug is an offence under s 307.2 of the Commonwealth Criminal Code Act 1995. Under the Code the marketable quantity for heroin is 2 grams or more and the commercial quantity is 1.5 kilograms or more. The maximum penalty for an offence under s 307.2 is imprisonment for 25 years or 5,000 penalty units or both.
4 The sentence imposed by the sentencing judge was a term of imprisonment of six years commencing on 18 January 2007, the date of sentencing, with a non-parole period of four years.
5 No complaint was made in this application about the statement of the facts of the offence contained in the remarks on sentence of the sentencing judge. This statement was taken almost verbatim from a statement of facts admitted…
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.
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Details
AGLC
Danial v R [2008] NSWCCA 15
Case
[2008] NSWCCA 15
Decision Date
CaseChat Overview and Summary
In the case of Danial v R, the appellant faced sentencing for a Commonwealth offence. The dispute centred on the length of the pre-sentence custody and whether it was appropriate given the appellant's willingness to facilitate the course of justice. The strength of the Crown case was also considered as a relevant factor in determining the appropriate sentence.
The primary legal issue before the court was whether the appellant's willingness to cooperate with authorities, which had expedited the investigation and potentially mitigated the harm caused by the offence, warranted a reduction in the pre-sentence custody period. The court also needed to consider the strength of the Crown's case, which was deemed robust and unlikely to be significantly impacted by the appellant's actions.
The court acknowledged the appellant's willingness to cooperate, noting that such actions could contribute to the administration of justice and reduce the harm caused by the offence. However, the court held that these factors, while relevant, did not justify a reduction in the pre-sentence custody period. The strength of the Crown's case was also considered, with the court finding it to be compelling and not sufficiently weakened by the appellant's actions to warrant a lesser sentence.
The court ultimately upheld the original sentence, including the pre-sentence custody period, finding that the appellant's willingness to cooperate and the strength of the Crown case, while important considerations, did not sufficiently mitigate the gravity of the offence to warrant a reduction in sentence.