EG v Regina - [2003] NSWCCA 246

CITATION: EG v Regina [2003] NSWCCA 246

HEARING DATE(S): 19 August 2003

JUDGMENT DATE:
19 August 2003

JUDGMENT OF: Spigelman CJ at 1,16,18; Sully J at 17; Hidden J at 2

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence - supply heroin - substantial commercial enterprise - applicant in a managerial role - whether sufficient discount for plea of guilty, remorse and assistance to authorities - whether unwarranted disparity from sentence passed upon co-offender - whether any lesser sentence warranted in law

LEGISLATION CITED: Criminal Appeal Act

PARTIES :
EG (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 60192/03

COUNSEL: S Odgers SC (applicant)
D Arnott (Crown)

SOLICITORS: Adamson Solicitors (applicant)
S E O'Connor (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0019

LOWER COURT
JUDICIAL OFFICER : Dalgleish QC, ADCJ

60192/03

SPIGELMAN CJ
SULLY J
HIDDEN J
Tuesday 19 August 2003

REGINA v EG

Judgment

1 SPIGELMAN CJ: I invite Hidden J to give the first judgment.

2 HIDDEN J: The applicant pleaded guilty in the District Court to a charge of supplying a large commercial quantity of heroin. He also asked the sentencing judge to take into account, on a Form 1, a related offence of supplying a commercial quantity of cocaine. He was sentenced to imprisonment for eleven years and three months to date from 3 August 2000, when he was taken into custody, with a non-parole period of eight years and six months. He seeks leave to appeal against that sentence.

3 The facts are helpfully summarised in the written submissions of the Crown and I do not understand there to be any dispute with that summary of the facts on the part of senior counsel for the applicant. It is sufficient to say that the applicant was involved, at a managerial level, in a major drug trafficking enterprise over a period of some four months. He was not the principal in the enterprise but his role does not appear to have been very much less than that of a principal. The drugs were actually sold by other offenders but they were supplied to those offenders by the applicant and he maintained a supervisory role over them.

4 Over the relevant period about four kilograms of heroin were sold and a very substantial quantity of cocaine. On any view of it the two offences, and in so saying I include the cocaine offence on the Form 1, were very serious.

5 The learned sentencing judge was of the view that the appropriate starting point for sentence was fourteen and a half years. However, his Honour had regard to the applicant’s plea of guilty and his finding that the applicant had exhibited a degree of remorse. He also had regard to some assistance which the applicant had rendered to the authorities. The evidence of that was before his Honour in the form of a sealed envelope from the New South Wales Crime Commission.

6 In the light of the plea, the remorse and the…

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 EG v Regina

Details

AGLC: EG v Regina [2003] NSWCCA 246
Case: [2003] NSWCCA 246
Decision Date: 19 August 2003

CaseChat Overview and Summary

The case of EG v Regina involved the applicant, EG, appealing against the sentence imposed following a conviction for trafficking in a commercial quantity of a dangerous drug. The applicant was found to be part of a substantial commercial enterprise involved in the supply of heroin. The appeal centred on the sentence imposed, arguing that it was excessive and disproportionate when compared to the sentence received by a co-offender. The Court of Appeal was tasked with reviewing the sentencing decision, particularly focusing on the weight given to various mitigating factors and the principle of parity between co-offenders.

The legal issues before the court were whether the sentence was appropriate in light of the mitigating factors presented, specifically the applicant's plea of guilty, expressed remorse, and cooperation with authorities. Furthermore, the court had to consider whether the sentence was unjustifiably disparate when compared to the sentence of the co-offender. Additionally, the court examined if any lesser sentence would have been warranted in the circumstances.

The court found that while the applicant's plea of guilty, remorse, and assistance were relevant mitigating factors, they did not warrant a significantly lower sentence. The court considered the applicant's role within the enterprise, which was managerial, and the substantial quantity of drugs involved. The court noted that the sentence imposed was within the range of what would be appropriate for the gravity of the offence. Regarding the disparity with the co-offender's sentence, the court held that while there was a difference, it was not so pronounced as to render the applicant's sentence unjust. The court concluded that the sentence was proportionate to the seriousness of the crime and that no lesser sentence would be warranted in law.

Orders