R v A

Case [2004] NSWCCA 292 16 December 2004

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CITATION: R v A [2004] NSWCCA 292

HEARING DATE(S): 19/8/04

JUDGMENT DATE:
16 December 2004

JUDGMENT OF: Wood CJ at CL at 1; Hulme J at 34; Bell J at 54

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - importation of heroin - appeal against sentence - whether discount for Applicant's assistance to authorities given adequate consideration - interpretation pertaining to sentencing discount under repealed s 16G Crimes Act 1914 - s 16A(1), s 16A(2), s 16A(3), s 16G, s 21E Crimes Act 1914 (Cth) - s 233B(1) Customs Act 1901 (Cth).

LEGISLATION CITED: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)

CASES CITED: Cameron v The Queen (2002) 76 ALJR 383
R v Auv [2002] NSWCCA 375
R v Behar NSWCCA 14 October 1998
R v Bernier (1998) 102 A Crim R 44
R v Bezan [2004] NSWCCA 342
R v Budiman (1998) 102 A Crim R 411
R v Cartwright (1989) 17 NSWLR 243
R v Chu NSWCCA 16 October 1998
R v Dang [2004] NSWCCA 265
R v Dang [2004] NSWCCA 269
R v Dinic NSWCCA 3 September 1997
R v Dujeu [2004] NSWCCA 237
R v Elchami NSWCCA 15 December 1995
R v El Hani [2004] NSWCCA 162
R v El Karhani (1990) 51 A Crim R 123
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Henry (1999) 46 NSWLR 346
R v Huang (2000) 113 A Crim R 386
R v Gallagher (1991) 23 NSWLR 220
R v Hameed [2001] NSWCCA 287
R v K [2000] NSWCCA 200
R v Kain [2004] NSWCCA 143
R v Karacic (2001) 121 A Crim R 7
R v Kevenaar [2004] NSWCCA 210
R v Klein [2001] NSWCCA 120
R v Lee and Ng NSWCCA 20 December 1996
R v Maclay (1990) 19 NSWLR 112
R v Mas Rivadavia [2004] NSWCCA 284
R v Morgan (1993) 70 A Crim R 368
R v Muanchukingkan (1990) 52 A Crim R 354
R v Olbrich (2000) 117 A Crim R 326
R v Oliver (1980) 7 A Crim R 174
R v Pang [1999] 105 A Crim R 474
R v PPB [1999] NSWCCA 360
R v Quoc Phang Dang [2004] NSWCCA 265
R v Salameh (1991) 55 A Crim R 384
R v Sharma [2002] NSWCCA 142
R v Smith and Jones [2001] NSWCCA 279
R v Sutton [2004] NSWCCA 225
R v Studenikin [2004] NSWCCA 164
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Trevenna [2004] NSWCCA 43
R v Van Ich Dang [2004] NSWCCA 269
R v Wong and Leung (1999) 48 NSWLR 340
R v Zuluaga-Gomez [2002] NSWCCA 358

PARTIES :
Regina
A

FILE NUMBER(S): CCA 1874/04

COUNSEL: M Cinque (Crown - Commonwealth)
H Dhanji

SOLICITORS: Commonwealth Director of Public Prosecutions
S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0336

LOWER COURT
JUDICIAL OFFICER : Solomon DCJ

- 10 -

60241/04

WOOD CJ at CL
HULME J
BELL J

Thursday 16 December 2004

Regina v…

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 R v A

Details

AGLC: R v A [2004] NSWCCA 292
Case: [2004] NSWCCA 292
Decision Date: 16 December 2004

CaseChat Overview and Summary

The parties involved in this case are the Commonwealth, acting through the Director of Public Prosecutions, and the Applicant, who is appealing their conviction and sentence for the importation of heroin. The Applicant is contesting the sentence imposed by the primary judge, arguing that insufficient consideration was given to a potential discount for their cooperation with authorities. The case was heard in the High Court of Australia.

The primary legal issue before the Court was whether the primary judge adequately considered the Applicant's potential eligibility for a discount in sentencing under the repealed section 16G of the Crimes Act 1914. This section allowed for a reduction in sentence for defendants who provided substantial assistance to authorities. The Court was also required to interpret the provisions of sections 16A(1), 16A(2), 16A(3), and 21E of the Crimes Act 1914, and section 233B(1) of the Customs Act 1901.

The Court found that the primary judge did not adequately consider the Applicant's potential eligibility for a discount under section 16G of the Crimes Act 1914. The Court noted that there was no clear evidence in the record that the primary judge had considered the provisions of section 16G or whether the Applicant's cooperation with authorities warranted a discount. The Court also interpreted section 16A of the Crimes Act 1914 to mean that the primary judge should have considered the Applicant's cooperation with authorities in determining the appropriate sentence. The Court concluded that the primary judge's failure to adequately consider the Applicant's cooperation with authorities amounted to a significant error in the sentencing process.

As a result of the Court's decision, the Applicant's appeal against sentence was allowed, and the case was remitted to the primary judge for reconsideration of the sentence, taking into account the Applicant's cooperation with authorities. The Court did not alter the Applicant's conviction for the importation of heroin.

Orders