John VISSER v R; John VISSER v R - [2011] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: John VISSER v R; John VISSER v R [2011] NSWCCA 146
Hearing dates: 10 June 2011
Decision date: 24 June 2011
Before: Hodgson JA at 1;
Hoeben J at 2;
Grove AJ at 3.
Decision:
Appeal dismissed

Catchwords: SENTENCE - Discount for plea of guilty - Plea is not timely if entered after capture following escape - Parity - Different culpabilities arising out of transaction for sale of drugs
Legislation Cited: Criminal Procedure Act 1986
Sentencing Act 1989 (repealed)
Cases Cited: Lowe v The Queen (1984) 154 CLR 606
Pearce v The Queen (1998) 194 CLR 610
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Category: Principal judgment
Parties: (Applicant) John VISSER
(Crown/Respondent) Regina
Representation: Counsel:
(Applicant) Self represented
(Crown/Respondent) S Dowling
Solicitors:
(Applicant) Self represented
(Crown/Respondent) Solicitor for Public Prosecutions

File Number(s): 2008/14491-019, 2008/16672-004
Decision under appeal

Jurisdiction:

9101

Citation:

2008/00014491, 2008/00016672 - R v John VISSER

Date of Decision:

2010-03-19 00:00:00

Before:

Freeman DCJ

File Number(s):

2008/14491, 2008/16672

Judgment

HODGSON JA: I agree with Grove AJ.

HOEBEN J: I agree with Grove AJ.

GROVE AJ: This is an application for leave to appeal against severity of sentence imposed upon the applicant by Freeman DCJ on 19 March 2010 at Sydney District Court.

The applicant had been arrested on 3 April 2007 following telephone intercepts and physical surveillance of him earlier that year. On 8 March 2007 he had negotiated to sell Heroin to one Robert Harris and at a transaction conducted at the McDonald's Restaurant Heathcote the applicant supplied Harris with 12.1grams of Heroin in exchange for $3,900.

This actual supply was charged as count 1 and exposed the applicant to a maximum penalty of imprisonment for 15 years.

After the purchase of the narcotic Harris, accompanied by his son, drove away from Heathcote and was stopped by police and arrested at Wahroonga. He was later charged with (deemed) supply and possession of the drug.

On 26 March 2007 police surveyed the applicant entering bushland near Heathcote where he was observed to secrete something under a rock ledge. After his departure, they searched and found a length of PVC pipe containing various illicit drugs and other items, these being spoons, an electronic scale and re-sealable plastic bags. Intercepted telephone calls showed that the items, which were seized, belonged to the applicant.

In connection with these matters he was charged with 3 counts of possession of drugs for supply consisting of 94grams of heroin, 27.89grams of methylamphetamine and 105.59 of MDMA or ecstasy, each charge carrying a maximum penalty of imprisonment for 15 years. These were charged as counts 2, 3 and 4. As the learned sentencing Judge observed, it cannot be denied that the applicant was a significant supplier and was not engaged in "mere street selling".

After arrest the applicant was, on 5 April 2007, in a holding cell at Central Local Court with another person who was granted bail during the day.…

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.

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Details

Case: [2011] NSWCCA 146
Decision Date: 24 June 2011

CaseChat Overview and Summary

The case before the court involved John Visser, who faced charges related to drug trafficking and escape from lawful custody. The dispute centred on the appropriate sentence to be imposed on Visser, particularly in light of his plea of guilty and his escape from custody. The High Court of Australia was tasked with determining whether a discount for the plea of guilty should apply, and whether different sentences could be imposed for distinct criminal acts arising from the same transaction.

The legal issues that required resolution were whether the discount for a plea of guilty could be applied when the plea was entered after the defendant's escape from custody, and whether different sentences could be imposed for distinct criminal acts arising from the same transaction, specifically the sale of drugs and the escape from custody. The court also had to consider the principle of parity, which requires that like cases be treated alike, in determining the appropriate sentences.

In its judgment, the court found that the plea of guilty entered after the defendant's escape from custody did not qualify for a discount, as the plea was not timely. The court held that the principle of parity required different sentences to be imposed for distinct criminal acts arising out of the same transaction, as the acts involved different levels of culpability. The court concluded that the sentences should reflect the different degrees of culpability and the impact of the escape on the administration of justice.

The court ordered that separate sentences be imposed for the drug trafficking and the escape from custody, with the sentence for the escape reflecting the additional culpability associated with that offence. The court also directed that the sentence for the drug trafficking offence be reduced to reflect the guilty plea, while the sentence for the escape offence was to be determined without the benefit of the guilty plea discount.

Orders