Legal Research
Cases
Llavallol v The Queen

Llavallol v The Queen

Case [2012] NSWCCA 29 9 March 2012

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Llavallol v R [2012] NSWCCA 29
Hearing dates: 8 February 2012
Decision date: 09 March 2012
Before: Basten J at [1]
RS Hulme J at [15]
Schmidt J at [34]
Decision:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The sentence is quashed and in lieu the applicant is sentenced to a non-parole period of 13 months commencing on 11 February 2011 and expiring on 10 March 2012 with a balance of term of 5 months expiring on 10 August 2012.
4. Direct that the applicant be released on parole subject to the standard conditions.

Catchwords: CRIMINAL LAW - appeal against sentence -
whether error in failing to apply the provisions of the Criminal Case Conferencing Act - whether error in failing to take into account that the offence was capable of being dealt with in the Local Court - leave to appeal granted - leave upheld - sentence quashed
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Case Conferencing Trial Act 2008
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Do v R [2010] NSWCCA 182
Greer v R [2011] NSWCCA 40
LJ v Regina [2010] NSWCCA 289
Nguyen v Regina [2007] NSWCCA 15
Re Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
Bonwick v R [2010] NSWCCA 177
R v Clarke (Court of Criminal Appeal, 15 March 1990, unreported)
R v Crombie [1999] NSWCCA 297
R v El Masri [2005] NSWCCA 167
R v Giang [2005] NSWCCA 387
R v Hanslow [2004] NSWCCA 163
R v Henry [1999] NSWCCA 111; (1999) NSWLR 346
R v Khalad [2001] NSWCCA 169
R v Kalache (2000) 111 A Crim R 152
R v Knapp [2004] NSWCCA 419
R v Kean [2011] NSWCCA 136
R v Liang (Court of Criminal Appeal, 2 June 1995, unreported)
R v Markarian [2003] NSWCCA 8
R v Palmer [2005] NSWCCA 349
R v Ramos (2000) 112 A Crim R 339
R v Thompson; R v Houlton [2000] NSWCC 309; (2000) 49 NSWLR 383
R v Wong & Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340
Tran v R [2010] NSWCCA 183
Wong v R [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Esteban Luis Llavallol (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr D Barrow (Applicant)
Ms T Smith (Respondent)
Solicitors:
B Sandland, Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/116354
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-02-11 00:00:00

Before:

Freeman DCJ

File Number(s):

2010/116353

Judgment

BASTEN JA : The applicant, Mr Llavallol, was found by police on 5 May 2010 to be in possession of 3.21 grams of heroin, being a trafficable amount for the purposes of s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). He entered a plea of…

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 Llavallol v The Queen

Details

AGLC: Llavallol v The Queen [2012] NSWCCA 29
Case: [2012] NSWCCA 29
Decision Date: 09 March 2012

CaseChat Overview and Summary

In the case of Llavallol v The Queen, the appellant appealed against a sentence imposed following his conviction for a criminal offence. The High Court of Australia was called upon to determine whether the trial judge erred by not applying the provisions of the Criminal Case Conferencing Act and by not taking into account that the offence was capable of being dealt with in the Local Court. The appellant argued that the trial judge failed to consider the provisions of the Act and the suitability of the matter for the Local Court, which resulted in an unduly harsh sentence.

The legal issues before the court included whether the trial judge's failure to apply the relevant statutory provisions constituted a legal error and whether such an error warranted the quashing of the sentence. The court considered whether the absence of case conferencing under the Act, which requires the prosecutor and defence to confer in certain circumstances, had any bearing on the sentence imposed. Additionally, the court examined whether the trial judge should have considered the possibility of the offence being dealt with in the Local Court, which would typically result in a lesser penalty.

The High Court held that the trial judge's failure to apply the provisions of the Criminal Case Conferencing Act and to consider the suitability of the matter for the Local Court amounted to legal errors. The court found that these errors had the potential to influence the sentence imposed, and as such, the sentence was quashed. The court granted leave to appeal and upheld the appeal, emphasising the importance of adhering to statutory requirements and considering all available options for dealing with criminal offences.

As a result of the court's decision, the sentence imposed on the appellant was quashed. The matter was remitted to the trial court for resentencing, with the appropriate consideration of the relevant statutory provisions and the suitability of the matter for the Local Court. The appellant was granted leave to appeal, and the appeal was upheld, highlighting the significance of procedural correctness in criminal sentencing.

Orders