Lapa v The Queen - [2008] NSWCCA 331

Reported Decision: 192 A Crim R 305

New South Wales

Court of Criminal Appeal

CITATION: LAPA v REGINA [2008] NSWCCA 331

HEARING DATE(S): 04/06/2008

JUDGMENT DATE:
19 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hidden J at 3

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal against Drug Court sentences - break, enter and steal - supply heroin - pleas of guilty - break, enter and steal dealt with summarily - whether judge could determine starting point in excess of two year limit for Table 1 offence before reduction for plea - whether sentence for supply heroin and overall sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Criminal Appeal Act 1912
Drug Court Act 1998
Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383
R v Doan [2000] NSWCCA 317, 50 NSWLR 115
R v Tran [1999] NSWCCA 109

PARTIES: John LAPA (appellant)
Regina (respondent)

FILE NUMBER(S): CCA 2007/2969

COUNSEL: A Francis (appellant)
G Rowling (respondent)

SOLICITORS: S O'Connor (LAC)
S Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2004/162

LOWER COURT JUDICIAL OFFICER: Barnett DCJ

LOWER COURT DATE OF DECISION: 27/04/2007

2007/2969

McCLELLAN CJ at CL
HULME J
HIDDEN J
19 December 2008

John LAPA v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hidden J.

2 HULME J: I agree with Hidden J

3 HIDDEN J: The appellant, John Lapa, appeals against sentences imposed upon him by his Honour, Judge Barnett in the Drug Court of New South Wales. The sentences the subject of the application are as follows:

· On a charge of break, enter and steal (s112(1) of the Crimes Act) imprisonment for 23 months, comprising a non-parole period of 17 months and a balance of term of 6 months, to date from 24 August 2006;

· On a charge of supplying heroin (s25(1) and s29 of the Drug Misuse and Trafficking Act), imprisonment for 5 years, comprising a non-parole period of 3½ years and a balance of term of 1½ years, to date from 9 November 2006.

4 To understand the length of the first sentence, and the commencement date of both of them, it will be necessary to sketch the history of the proceedings. Provision for appeals to this Court against sentences imposed in the Drug Court is to be found in s5AF of the Criminal Appeal Act 1912. At the outset of the hearing a question was raised about how the Court should be constituted for the appeal in respect of the sentence for the break, enter and steal offence, given that it…

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 Lapa v The Queen

Details

AGLC: Lapa v Regina [2008] NSWCCA 331
Case: [2008] NSWCCA 331
Decision Date: 19 December 2008

CaseChat Overview and Summary

The appellant was convicted for breaking and entering and stealing, and for supplying heroin. The appellant pleaded guilty to both offences and was sentenced by the Drug Court. The appellant appealed against the sentence, arguing that the sentence for the break, enter and steal offence was excessive as the judge determined a starting point in excess of the two-year limit for a Table 1 offence before reduction for the plea. The appellant also argued that the sentence for the heroin supply offence and the overall sentence were manifestly excessive. The respondent argued that the sentence was appropriate and should be upheld.

The court was required to determine whether the judge could determine a starting point in excess of the two-year limit for the break, enter and steal offence before reduction for plea, and whether the sentence for the heroin supply offence and the overall sentence were manifestly excessive. The court noted that the judge had considered the appropriate starting point for the break, enter and steal offence, and that the sentence for the heroin supply offence and the overall sentence were not manifestly excessive. The court found that the sentence was appropriate and should be upheld.

The court held that the judge was not required to determine a starting point in excess of the two-year limit for the break, enter and steal offence before reduction for plea. The court held that the sentence for the heroin supply offence and the overall sentence were not manifestly excessive, as the judge had considered the appropriate sentence for each offence and the overall sentence was not disproportionate to the offending. The court found that the sentence was appropriate and should be upheld.

The appeal was dismissed.

Orders