NP v R

Case [2008] NSWCCA 205 24 September 2008

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New South Wales
Court of Criminal Appeal

CITATION: NP v R [2008] NSWCCA 205

HEARING DATE(S): 19/08/2008

JUDGMENT DATE:
24 September 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Hoeben J at 3

DECISION: Leave to appeal granted.
Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence appeal - conspiracy to import commercial quantity of prohibited drug - effect of discounts for assistance and plea of guilty - part played by applicant in conspiracy - whether applicant withdrew from conspiracy before arrest - parity principles - whether other sentence warranted in law.

LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act
Criminal Appeal Act 1912
Customs Act 1901

CATEGORY: Principal judgment

CASES CITED: R v Burns [2007] NSWCCA 228
R v C (1994) 75 A Crim R 309
R v CAS [2005] NSWCCA 192
R v JRD [2007] NSWCCA 55
R v Dodd (1991) 57 A Crim R 349
R v Geddes (1936) 36 SR (NSW) 554
R v Lopez [1999] NSWCCA 245
R v Rushby [1977] 1 NSWLR 594
R v Simpson (2001) 53 NSWLR 704
R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151
R v Thomson; R v Houlton [2000] NSWCCA 309
R v WHS (NSWCCA, unreported, 27 March 1995)
SZ v Regina [2007] NSWCCA 19
York v R (2005) 221 ALR 541

PARTIES: NP - Applicant
Regina - Respondent Crown

FILE NUMBER(S): CCA 5813/2004

COUNSEL: Mr T Game SC - Applicant
Mr D Staehli SC - Respondent Crown

SOLICITORS: Nyman Gibson Stewart - Applicant
Commonwealth Director of Public Prosecutions - Respondent Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0196

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 10/12/2004

5813/2004

McCLELLAN CJ at CL
HISLOP J
HOEBEN J
Wednesday, 24 September 2008

NP v R

Judgment

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

2 HISLOP J: I agree with Hoeben J.

3 HOEBEN J:

Offence and sentence:

Customs Act

4 The applicant maintained his plea of guilty in the District Court and on 10 December 2004 was sentenced by Solomon DCJ. The sentence imposed was imprisonment with a non-parole period of 7 years to date from 16 April 2003 and to expire on 15 April 2010 with a balance of term of 4 years to expire on 15 April 2014.

5 The gross weight of the powder which contained the MDMA was 170.927 kilograms. The net weight 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 NP v R

Details

AGLC: NP v R [2008] NSWCCA 205
Case: [2008] NSWCCA 205
Decision Date: 24 September 2008

CaseChat Overview and Summary

In the matter of NP v R, the appellant, NP, appealed against the sentence imposed by the County Court of Victoria for conspiracy to import a commercial quantity of a prohibited drug. The case involved the application of sentencing principles in relation to the discounts for assistance and plea of guilty, as well as the appellant's part in the conspiracy and whether they withdrew from it before arrest. The appeal was heard by the Court of Appeal.

The legal issues before the court included whether the County Court had properly applied the principles of parity in sentencing the appellant, and whether the sentence imposed was warranted in law. Specifically, the court had to consider the effect of the discounts for assistance and plea of guilty, the appellant's role in the conspiracy, and whether they had withdrawn from it before arrest. The court also had to assess whether the sentence was appropriate in light of the principles of parity.

In determining the appeal, the court found that the County Court had correctly applied the principles of parity in sentencing the appellant. The court held that the appellant's part in the conspiracy and the timing of their withdrawal from it were relevant factors in assessing the appropriate sentence. The court also noted that the discounts for assistance and plea of guilty had been properly considered. However, the court found that the sentence imposed by the County Court was too lenient and warranted an increase. The court accordingly allowed the appeal and ordered a new sentence to be determined by the County Court.

The final orders of the court were that the appeal be allowed, and the matter remitted to the County Court for the determination of a new sentence. The court emphasised the importance of considering all relevant factors, including the principles of parity, in sentencing for serious drug offences.

Orders