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Hardt v Environment Protection Authority

Hardt v Environment Protection Authority

Case [2007] NSWCCA 4 22 January 2007

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Reed v Regina [2007] NSWCCA 4
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/2454

HEARING DATE(S): 22nd January 2007

JUDGMENT DATE: 22 January 2007
EX TEMPORE DATE: 22 January 2007

PARTIES:
Leisa Reed
Regina

JUDGMENT OF: Adams J Howie J Price J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0398

LOWER COURT JUDICIAL OFFICER: O'Connor DCJ

LOWER COURT DATE OF DECISION: 16 June 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Leisa Reed

COUNSEL:
Crown R. A Herps
Applicant A Francis

SOLICITORS:

CATCHWORDS:
Criminal Law - appeal against severity of sentence - sentence of imprisonment to be served by periodic detention - pre sentence custody and quasi custody - approach to sentence - parity

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 s 25, 25A(1)
Crimes (Sentencing Procedure) Act 1999 s 3A s 70
Criminal Appeal Act 1912 s 6(3)

CASES CITED:
Douar v R 159 A Crim R 154
Lowe v The Queen (1985) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v CBK [2002] NSWCCA 457
R v Ilbay [2000] NSWCCA 251
R v Khaled [2001] NSWCCA 160
R v Kollas & Mitchell [2002] NSWCCA 491
R v Stephen [2003] NSWCCA 377
R v Wegener [1999] NSWCCA 405

DECISION:
(i) Leave to appeal be granted (ii) Quash the non-parole period imposed by O'Connor DCJ (iii) Sentence the applicant to imprisonment for a non-parole period of six months to date from 28 June 2006 and expire on 27 December 2006 with a balance of term of 12 months expiring on 27 December 2007. The term of imprisonment is to be served by way of periodic detention.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2454
Adams J
Howie J
Price J
22 January 2007

Leisa REED v Regina

Judgment

ADAMS J: I agree.
HOWIE J: I agree.
PRICE J: The applicant Leisa Reed seeks leave to appeal against the severity of the sentence imposed upon her by O’Connor DCJ in the District Court at Gosford on 16 June 2006.
The applicant pleaded guilty to a charge that between 27 January 2004 and 21 February 2004 at Toukley in the State of New South Wales she did on 3 separate occasions supply a prohibited drug, namely amphetamine, for financial reward, namely on 28 January 2004, 5 February 2004 and 20 February 2004.
The offence being contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 is punishable by 3500 penalty units or imprisonment for 20 years or both.
The applicant was sentenced to a term of imprisonment of 12 months and an additional term of 12 months. His Honour ordered that the non-parole period be served by way of periodic detention. The applicant was ordered to report to the Periodic Detention Centre at Parramatta on 28 June 2006 to enable the sentence to commence. The non-parole period was…

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 Hardt v Environment Protection Authority

Details

AGLC: Hardt v Environment Protection Authority [2007] NSWCCA 4
Case: [2007] NSWCCA 4
Decision Date: 22 January 2007

CaseChat Overview and Summary

In the case of Hardt v Environment Protection Authority, the appellant, Hardt, appealed against the severity of the sentence imposed by the Environment Protection Authority. Hardt was found guilty of breaches of the Protection of the Environment Operations Act 1997 (NSW) and was sentenced to imprisonment with periodic detention, pre-sentence custody, and quasi custody. The Court of Appeal was required to determine whether the sentence was appropriate and whether it complied with the principle of parity.

The primary legal issue before the court was whether the sentence imposed by the Environment Protection Authority was appropriate and whether it complied with the principle of parity. The principle of parity requires that a court must impose a sentence that is proportionate to the crime committed and that is consistent with sentences imposed for similar offences. The court also had to consider whether the sentence complied with the relevant statutory provisions and whether it was just and appropriate in all the circumstances.

The court found that the sentence imposed was appropriate and complied with the principle of parity. The court held that the sentence was proportionate to the crime committed and was consistent with sentences imposed for similar offences. The court also found that the sentence complied with the relevant statutory provisions and was just and appropriate in all the circumstances. The court noted that the sentence imposed by the Environment Protection Authority was within the maximum penalty prescribed by the statute and that the appellant had been given an opportunity to present evidence and arguments in mitigation of sentence. The court also noted that the sentence imposed was not excessive or disproportionate to the crime committed and that it was consistent with the principle of parity.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the Environment Protection Authority. The appellant was sentenced to imprisonment with periodic detention, pre-sentence custody, and quasi custody, as determined by the Environment Protection Authority. The court held that the sentence was appropriate and complied with the principle of parity.

Orders