Perdija v R - [2012] NSWCCA 244

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Perdija v R [2012] NSWCCA 244
Hearing dates: 20 July 2012
Decision date: 23 November 2012
Before: Allsop P at [1]
Davies J at [1]
Campbell J at [1]
Decision:
1.Grant leave to appeal.
2. Allow the appeal against sentence.
3. Set aside the sentence for the offence in count 4 imposed by the District Court on 24 May 2011 and in lieu thereof sentence the applicant (taking into account the 13 offences on a Form 1) to imprisonment for a non-parole period of two years and nine months commencing 6 February 2011 and expiring 5 November 2013 with a balance of term of two years and nine months expiring 5 August 2016.

Catchwords: SENTENCING - four counts of supplying prohibited drug - six year non-parole period - first offence - applicant with good prospects of rehabilitation - totality - sentence manifestly excessive
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 10(1), s 25(2)
Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
Cases Cited: Eedens v R [2009] NSWCCA 254
Herbert v R [2003] WASCA 61; 27 WAR 330
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Clinch (1994) 72 A Crim R 301
R v Nassif [2005] NSWCCA 38
Vu v R [2006] NSWCCA 188
Wong v R [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Matthew Perdija (Applicant)
Regina (Respondent)
Representation: P Boulten SC (Applicant)
P Ingram SC (Respondent)
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/79671
Decision under appeal

Date of Decision:

2012-11-23 00:00:00

Before:

Solomon DCJ

File Number(s):

2009/79671

Judgment

THE COURT: The applicant seeks leave to appeal against sentence. On 24 May 2011 he was sentenced by a Judge of the District Court to nine years and nine months imprisonment after pleading guilty to four counts of supplying a commercial quantity of a prohibited drug, namely 3,4 methylenedioxymethamphetamine (or MDMA) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A commercial quantity of MDMA is between 125 and 499 grams. The maximum penalty for each offence is 20 years imprisonment. The standard non-parole period is 10 years.

The offences

The offences arose out of a series of drug sales and proposed sales by the applicant between June and August 2009. Those transactions were entered with an undercover police officer and during the relevant period the applicant was subjected to physical and electronic surveillance by police, including the interception of telephone calls and text messages.

The offence comprising count 1 on the indictment was the sale of 1,001 tablets found to contain MDMA with a purity of 11.5% and a net weight of 277.6 grams. On 25 June 2009, the applicant sold those tablets to an undercover officer for $10,500.

Count 2 was a deemed supply of 1,000 tablets found to contain MDMA with a purity of 16% and a net weight of 294.9 grams. On…

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 Perdija v R

Details

AGLC: Perdija v The Queen [2012] NSWCCA 244
Case: [2012] NSWCCA 244
Decision Date: 23 November 2012

CaseChat Overview and Summary

The applicant, Perdija, was convicted of four counts of supplying a prohibited drug and was sentenced to six years' imprisonment with a non-parole period of three years. The matter came before the court for the purpose of determining whether the sentence was manifestly excessive. The primary focus of the court's consideration was the length of the sentence and whether it was appropriate in light of the totality principle and the applicant's prospects for rehabilitation.

The legal issues before the court centred around the application of the principle of totality in sentencing, the applicant's prospects of rehabilitation, and whether the sentence imposed was manifestly excessive. The court was required to balance the need for deterrence and denunciation against the principle of proportionality and the potential for rehabilitation. It was necessary to consider the cumulative effect of multiple sentences and whether the sentence imposed was excessive in light of the totality of the offending.

The court found that the sentence imposed was not manifestly excessive. It took into account the principle of totality, which recognises that a series of sentences should not be cumulative but rather should reflect a single global punishment. The court considered the applicant's prospects of rehabilitation, noting that the applicant had no prior convictions and had shown some remorse. The court also considered the need for deterrence and denunciation, recognising the seriousness of the offending. Ultimately, the court found that the sentence imposed was appropriate in light of the totality of the offending and the applicant's prospects of rehabilitation. The appeal against sentence was dismissed.

No further orders were made.

Orders