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 2008JUDGMENT 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 1986CATEGORY: 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 109PARTIES: 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
19 December 2008McCLELLAN CJ at CL
HULME J
HIDDEN J
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.
The overall sentence is a little over 5 years and 2 months, with an effective non-parole period of a little over 3 years and 8 months. The total sentence would expire on 8 November 2011, and he would be eligible for release on parole on 8 May 2010.
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…
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- AGLC
- Lapa v Regina [2008] NSWCCA 331
- Case
- [2008] NSWCCA 331
- Decision Date
CaseChat Overview and Summary
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
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