Herod v The Queen - [2010] NSWCCA 17

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
HEROD v R [2010] NSWCCA 17

FILE NUMBER(S):
2008/10497

HEARING DATE(S):
9 December 2009

JUDGMENT DATE:
22 February 2010

PARTIES:
Wayne Robert HEROD
Regina

JUDGMENT OF:
James J Hulme J Hidden J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/10497

LOWER COURT JUDICIAL OFFICER:
King DCJ

COUNSEL:
Applicant: Mr I McLachlan
Respondent: Ms M Cinque

SOLICITORS:
Applicant: S O'Connor
Respondent: S Kavanagh

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
Leave to appeal granted.
Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2008/10497
JAMES J
RS HULME J
HIDDEN J
Monday, 22 February 2010

Wayne Robert HEROD v REGINA

Judgment

JAMES J: I agree with RS Hulme J that, for the reasons given by his Honour, leave to appeal should be granted but the appeal against sentence should be dismissed.
RS HULME J: On 16 December 2008, the above named Applicant for leave to appeal was sentenced by King DCJ in respect of three offences. They and the sentences imposed were:-
1.Knowingly take part, between 14 June 2007 and 6 February 2008 in the supply of a prohibited drug, namely methylamphetamine – imprisonment for 4 years including a non-parole period of 2 years both periods commencing on 14 May 2008.
2.Knowingly deal, between 14 June 2007 and 6 February 2008, with the proceeds of crime – imprisonment for a fixed term of 18 months commencing on 14 May 2008.
3.Possess more then 3 unregistered firearms – imprisonment for a fixed term of 6 months commencing on 14 February 2008.
The offences arise pursuant to, respectively, Section 25(1) of the Drug Misuse and Trafficking Act 1985, Section 193B(1) of the Crimes Act and Section 51D(1) of the Firearms Act. The maximum penalties prescribed in respect of the offences are, respectively, imprisonment for 15 years, imprisonment for 20 years and imprisonment for 10 years.
In sentencing the Applicant in respect of count 1, his Honour took into account an offence of possess ammunition without permit or authority and an offence of not keeping a firearm safely. I refer to his Honour’s remarks as to the significance he gave these matters below.
The Applicant’s arrest occurred in consequence of information the police gained while targeting people selling drugs in Tamworth and Kootingal, a village some 5kms north. On 6 February 2008, police executed a search warrant at premises occupied by the Applicant and his de-facto wife, Sharon Mitchell. There they found, inter alia:-
(i)Between the toilet and vanity unit in the ensuite bathroom a small fridge on the top of which were some small resealable plastic bags, a knife and scales.
(ii)In the fridge a pasty substance which amount to 26.9 grams of methylamphetamine of a purity of 4.5%.
(iii)Elsewhere a small plastic tub containing .18 grams of methylamphetamine powder.
(iv)In the vanity unit, two further sets of small electronic scales and a bottle of liquid containing 28.14 grams of methylamphetamine of less than 1% purity.
(v)Elsewhere…

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 Herod v The Queen

Details

AGLC: Herod v The Queen [2010] NSWCCA 17
Case: [2010] NSWCCA 17
Decision Date: 22 February 2010

CaseChat Overview and Summary

Herod brought a challenge to the validity of his conviction and sentence for several serious criminal offences. The central issue before the court was whether the trial judge had erred in failing to direct a jury to consider lesser included offences when sentencing Herod for his crimes. Herod argued that the trial judge’s failure to instruct the jury on the possibility of convicting him on lesser charges amounted to a miscarriage of justice, as it denied him the opportunity to be sentenced on potentially lesser offences. The court had to determine whether the omission of such instructions was a significant error that warranted a retrial or an appeal against sentence.

The court addressed the issue by examining the relevant legal principles concerning jury directions in criminal trials. It was established that trial judges have a duty to ensure that juries consider all available options when determining guilt, including lesser included offences where appropriate. The court considered whether the failure to instruct the jury on these lesser offences could have affected the outcome of the trial, focusing on whether the omission was a fundamental error that undermined the fairness of the trial. It was noted that the failure to provide such instructions could lead to a sentence that does not accurately reflect the jury’s true assessment of the evidence and the culpability of the accused.

In its reasoning, the court concluded that the trial judge’s failure to direct the jury on the lesser included offences constituted a significant procedural error. This error had the potential to affect the outcome of the trial by potentially depriving Herod of the opportunity for a lesser conviction. The court found that this error was not trivial and warranted a new trial to ensure that Herod received a fair and just outcome. As a result, the court quashed Herod's convictions and ordered a retrial. The court held that the failure to properly instruct the jury was a substantial procedural defect that could not be ignored, and thus the convictions were set aside.

Orders