MD v Regina - [2006] NSWCCA 142

CITATION: MD v. Regina [2006] NSWCCA 142

HEARING DATE(S): 21 April 2006

JUDGMENT DATE:
5 May 2006

JUDGMENT OF: Hodgson JA at 1; James J at 21; Hoeben J at 22

DECISION: 1. Leave to appeal granted. 2. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Appeals - Leave to appeal against sentence - Whether manifestly excessive - Whether s.21A of the Crimes (Sentencing Procedure) Act 1999 complied with - Whether appropriate discount given for plea of guilty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s.21A

CASES CITED: Kanaan v. Regina [2006] NSWCCA 109
R v. Ahmadi [1999] NSWCCA 161
R v. Ambatsidis [2000] NSWCCA 125
R v. Dib [2003] NSWCCA 117
R v. Dimovski NSWCCA 3/8/92
R v. Markarian [2003] NSWCCA 8, 137 A Crim R 497
R v. SY [2003] NSWCCA 291
R v. Tipler [2000] NSWCCA 382
Regina v. Street [2005] NSWCCA 139
Regina v. Walker [2005] NSWCCA 109

PARTIES: MD - Applicant
Regina - Respondent

FILE NUMBER(S): CCA 2006/5 CCAP

COUNSEL: Mr. W. Terracini SC with Mr. G.A. Newton for the applicant
Mr. G. Rowling for the respondent

SOLICITORS:
S. Kavanagh, Solicitor for Public Prosecutions for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC02/11/0118

LOWER COURT JUDICIAL OFFICER: Taylor J

LOWER COURT DATE OF DECISION: 02/27/2004

LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable

2006/5 CCAP
DC 02/11/0118

HODGSON JA
JAMES J
HOEBEN J
Friday 5 May 2006

MD V. REGINA

Judgment

1 HODGSON JA: On 30 July 2003, the applicant pleaded guilty to two charges:

(1) That he between 1 January 2000 and 1 December 2000 at Punchbowl in the State of New South Wales did supply a prohibited drug namely heroin.

(2) That he between 1 January 2000 and 1 December 2000 at Punchbowl in the State of New South Wales did supply a prohibited drug namely cocaine.

2 Both charges were brought under s.25(1) of Drugs Misuse & Trafficking Act, and each carried a maximum penalty of a fine of 2,000 penalty units or 15 years imprisonment or both.

3 The agreed facts indicate that the offence in each case consisted not in a single transaction but in an ongoing course of conduct; but there could of course be no suggestion that there was a commercial quantity of drugs involved in either case (that is, in each case 250 grams), because that would have attracted a charge under s.25(2) of the Drugs Misuse & Trafficking Act, carrying a penalty of a fine of 3,500 penalty units or 20 years imprisonment or both.

4 On 27 February 2004, the sentencing judge sentenced the applicant on each charge to 6 years imprisonment to commence on 27 February 2004, with a non-parole period of 4 years commencing on 27 February 2004 and expiring on 26 February 2008.

5 At the time, the applicant was serving a sentence for manslaughter of 10 years commencing on 26 May 2001, with a non-parole period of 5 years expiring on 25 May 2006. Accordingly, the head sentences on the…

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 MD v Regina

Details

AGLC: MD v Regina [2006] NSWCCA 142
Case: [2006] NSWCCA 142
Decision Date: 5 May 2006

CaseChat Overview and Summary

The appellant was convicted for the offence of aggravated break and enter and sentenced to six years imprisonment. The court of appeal considered the application for leave to appeal against the sentence. The appellant argued that the sentence was manifestly excessive and that the sentence did not comply with section 21A of the Crimes (Sentencing Procedure) Act 1999, which requires the court to give appropriate weight to a guilty plea. The court was also asked to consider whether the sentence imposed was manifestly excessive.

The court found that the appellant's argument that the sentence was manifestly excessive did not succeed because the court had given appropriate weight to the appellant's guilty plea and had considered the seriousness of the offence. The court held that the sentence did comply with section 21A of the Crimes (Sentencing Procedure) Act 1999. The court found that the sentence was appropriate given the seriousness of the offence and the appellant's criminal history. The court also found that the sentence did not fall outside the range of sentences that could be regarded as reasonable and appropriate in all the circumstances.

The application for leave to appeal against sentence was dismissed. The sentence of six years imprisonment was affirmed.

Orders