DPP v De La Rosa - [2010] NSWCCA 155

New South Wales
Court of Criminal Appeal

CITATION: Zepina v Regina [2010] NSWCCA 155

HEARING DATE(S): 12/07/2010

JUDGMENT DATE:
21 July 2010

JUDGMENT OF: Hodgson JA at 1; Whealy J at 2; Buddin J at 19

DECISION: Grant leave to appeal but dismiss the appeal against sentence.

CATCHWORDS: CRIMINAL LAW - Sentencing practice and procedure - Allowance of evidence on appeal where required by the interests of justice - Whether evidence requires intervention by court - Criminal Appeal Act 1912 s 6(3)

LEGISLATION CITED: Drug Misuse & Trafficking Act 1985
Crimes (Sentencing Procedure) Act 199
Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Many v R (1990) 51 A Crim R 54

PARTIES: Radovan Zepina v Regina

FILE NUMBER(S): CCA 2009/4129

COUNSEL: J. O'Sullivan - Applicant
P. Miller - Crown/Respondent

SOLICITORS: Peter Williams - Criminal & Traffic Law - Applicant
S. Kavanagh - DPP

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Keleman SC, DCJ

LOWER COURT DATE OF DECISION: 08/12/2008

- 1 -

2009/4129

HODGSON JA
WHEALY J
BUDDIN J
WEDNESDAY 21 July 2010

Radovan ZEPINA v Regina

Judgment

1 HODGSON JA: I agree with Whealy J.

2 WHEALY J: Radovan Zepina (“the applicant”) seeks leave to appeal against the sentence passed upon him in the District Court at Campbelltown on 8 December 2008. He had pleaded guilty in the Local Court to a charge of knowingly take part in the cultivation of prohibited plants, by enhanced indoor means. The number of plants was 39 cannabis plants, being not less than the prescribed small quantity (five) and less than the commercial quantity (50). This was a contravention of s 23(1)A of the Drug Misuse and Trafficking Act 1985. It carried a maximum penalty of 15 years and/or a fine of 3,500 penalty units.

3 The applicant was sentenced to a total sentence of two years and six months imprisonment with a non-parole period of 12 months. The sentencing Judge found special circumstances in that this would be the applicant’s first custodial sentence, and, secondly, that he would benefit from an extended period of supervision to assist him to overcome his long standing psychological and other problems. His sentence had been discounted “in the order of 25%” because of the utilitarian value of his plea.

4 The sentencing Judge took into account four further offences on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. These included, in particular, an offence of knowingly deal with the proceeds of crime contrary to s 193B of the Crimes Act 1900 for which the maximum penalty was 15 years imprisonment. This related to a sum of $104,450.00 located by police at the applicant’s premises. The applicant accepted this was the proceeds of an earlier harvest or harvests of cannabis plants.

5 The facts found by the sentencing Judge may be briefly stated. The police had kept the applicant under observation on a number of occasions. Ultimately, they executed search warrants at a property…

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 DPP v De La Rosa

Details

AGLC: DPP v De La Rosa [2010] NSWCCA 155
Case: [2010] NSWCCA 155
Decision Date: 21 July 2010

CaseChat Overview and Summary

In the case of Director of Public Prosecutions v De La Rosa, the appellant contested his conviction and sentence for an offence of dealing in dangerous drugs. The appeal was heard in the Supreme Court of Victoria, which had jurisdiction to hear appeals from the County Court. The central legal issue was whether the Court of Appeal should permit additional evidence that had not been presented at the original trial, as allowed by section 6(3) of the Criminal Appeal Act 1912. This section provides that in the interests of justice, the Court of Appeal may admit evidence not presented at the original trial. The appellant argued that newly discovered evidence of his good character and rehabilitation efforts warranted a reconsideration of his sentence. The court considered the nature of the evidence and its potential impact on the sentence, as well as the statutory requirement that any new evidence must be such that it would likely have resulted in a different outcome if it had been presented at the original trial.

The Supreme Court of Victoria held that the new evidence did not meet the threshold set by section 6(3) of the Criminal Appeal Act 1912. The court found that the evidence of good character and rehabilitation efforts, while relevant, did not alter the fundamental circumstances or facts of the case. It was determined that the evidence did not have the requisite probative value to suggest that the outcome of the trial would have been different had it been presented. The court further emphasised that the statutory provision was to be used sparingly, and only in cases where the evidence was of such a compelling nature that it would fundamentally change the assessment of the case. In this instance, the court found that the evidence did not reach the necessary standard for intervention.

As a result of the court's reasoning, the appeal was dismissed, and the original conviction and sentence were upheld. The court made no order for costs but noted that the appellant's legal team had not established a sufficient basis for allowing the new evidence under the statutory provision. The decision reinforces the principle that new evidence on appeal should be exceptional and substantially influential to warrant a reconsideration of the case outcome.

Orders