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Isaac v R

Isaac v R

Case [2012] NSWCCA 195 14 September 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Isaac v R [2012] NSWCCA 195
Hearing dates: 10/07/2012
Decision date: 14 September 2012
Jurisdiction: Criminal
Before: Hoeben JA at [1]
Latham J at [2]
Garling J at [3]
Decision:
(1) Grant leave to appeal.
(2) Appeal allowed.
(3) Quash each of the sentences imposed by the District Court of NSW (Syme DCJ) on 16 August 2011.
(4) In lieu thereof, Mr Isaac is sentenced as follows: Count 3: a sentence of imprisonment of 7 years and 6 months commencing on 11 August 2009; Count 2: a sentence of imprisonment of 8 years and 4 months commencing on 11 August 2010; Count 1: a sentence of imprisonment of 8 years and 4 months commencing on 11 February 2011.
In respect of all counts, Mr Isaac is sentenced to an aggregate sentence of 9 years and 10 months commencing on 11 August 2009 and concluding on 10 June 2019.
(5) Fix a minimum non-parole period of 7 years and 5 months commencing on 11 August 2009 and concluding on 10 January 2017, which is the first day upon which Mr Isaac will be entitled to be released.

Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence - three counts of aiding and abetting the importation of a marketable quantity of a border control drug - discount for assistance - appeal allowed - sentence reduced
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Cases Cited: Cameron v R [2002] HCA 6; (2002) 209 CLR 339
Felton v R [2010] NSWCCA 79
FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Cartwright (1989) 17 NSWLR 243
R v Gallagher (1991) 23 NSWLR 220
R v Golding (1980) 24 SASR 161
R v James and Sharman (1913) 9 Cr App R 142
R v Lowe (1977) 66 Cr App R 122;
R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474
R v Perez-Vargas (1986) 6 NSWLR 559
R v Robert Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458
Category: Principal judgment
Parties: Sam Isaac
The Crown
Representation: Counsel:
D Carroll (A)
C P O'Donnell (Crown)
Solicitors:
Legal Aid Commission of NSW (A)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2009/69063
Publication restriction: Nil
Decision under appeal

Date of Decision:

2011-08-16 00:00:00

Before:

Syme DCJ

File Number(s):

2009/69063

Judgment

HOEBEN JA: I agree with Garling J and the orders he proposes.

LATHAM J: I agree with Garling J.

GARLING J: On 16 August 2011, the applicant, Sam Isaac, pleaded guilty in the District Court at…

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 Isaac v R

Details

AGLC: Isaac v R [2012] NSWCCA 195
Case: [2012] NSWCCA 195
Decision Date: 14 September 2012

CaseChat Overview and Summary

The appellant was convicted of three counts of aiding and abetting the importation of a marketable quantity of a border control drug. The appellant applied for leave to appeal against the severity of the sentence imposed by the trial judge. The appeal was heard in the High Court of Australia. The central legal issues for the Court were whether the trial judge erred in failing to sufficiently discount the appellant’s sentence for his assistance, and whether the sentence imposed was manifestly excessive. The Court held that the trial judge had failed to appropriately consider the appellant's substantial assistance in mitigating the severity of his sentence. The Court noted that the trial judge had not given proper weight to the appellant's assistance in locating and identifying the drug importation operation and in providing information that led to the arrest of others involved in the operation. The Court further found that the sentence imposed was manifestly excessive, taking into account the appellant's level of assistance. The appeal was allowed, and the sentence was reduced.

The Court's reasoning was that the trial judge had not adequately considered the appellant's assistance when determining the appropriate sentence. The Court emphasised the importance of giving proper weight to an offender's assistance in mitigating the severity of their sentence. The Court noted that the appellant had provided substantial assistance, which had a significant impact on the investigation and prosecution of the drug importation operation. The Court held that the trial judge's failure to appropriately discount the appellant's sentence for his assistance amounted to a significant error in the sentencing process. The Court also found that the sentence imposed was manifestly excessive, taking into account the appellant's level of assistance and other relevant factors. The Court concluded that the appeal should be allowed and the sentence reduced to reflect the appellant's substantial assistance.

Orders