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R v Anderson

R v Anderson

Case [2004] NSWCCA 317 17 September 2004

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CITATION: R v Anderson [2004] NSWCCA 317

HEARING DATE(S): 10/9/2004

JUDGMENT DATE:
17 September 2004

JUDGMENT OF: Sperling J at 1; Kirby J at 2; Newman AJ at 3

DECISION: Leave granted to appeal but appeal dismissed.

CATCHWORDS: Criminal law - Knowingly concerned in the importation of cocaine - On sentence trial judge followed sentencing parameters in Wong & Leung 108 A Crim R 53 - While that decision overruled by High Court in that respect, sentence appropriate notwithstanding.

LEGISLATION CITED: Commonwealth Crimes Act 1914
Criminal Appeal Act 1912
Customs Act 1901

CASES CITED: R v Astill (No 2) (1992) 64A Crim R
R v Boulghourgian (2001) NSWCCA 460
R v Curello [2003] NSWCCA 201
R v Karacic [2001] NSWCCA 12
House V The King (1936) 55 CLR499
R v Marchando [2003] NSWCCA 71
R v Mas Rivadavia & Ors [2004] NSWCCA 284
R v Olbrich (1999) 199 CLR 270
R v Taru [2002] NSWCCA 391
R v Whyte [2002] NSWCCA 343
R v Wong & Leung (1999) 48 NSWLR 340
Wong v Leung v The Queen (2001) 207 CLR 584

PARTIES :
Regina
Raymond Peter Anderson

FILE NUMBER(S): CCA 60196/00

COUNSEL: Ms. M.Cinque (Crown)
Mr. A. Haesler with Mr. P. Young (Applicant)

SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)
Horowitz & Bilinsky Solicitors (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/9839

LOWER COURT
JUDICIAL OFFICER : Sides DCJ

60196/00

SPERLING J
KIRBY J
NEWMAN AJ
17 SEPTEMBER 2004

R V Raymond Peter ANDERSON

Judgment

1 SPERLING J: I agree with Newman AJ.

2 KIRBY J: I agree with Newman AJ.

3 NEWMAN AJ: This is an application for leave to appeal against a sentence imposed upon the applicant by his Honour Judge Sides in the District Court on Friday 7 April 2000.

4 His Honour imposed a head sentence of 14 years with a non-parole period of 8 years. In sentencing the applicant his Honour backdated the sentence to the date when the applicant went into custody, namely 17 July 1998.

5 His Honour’s sentence followed the conviction of the applicant, by a jury, of the offence of being knowingly concerned in the importation of a prohibited import, namely cocaine, in not less than a commercial quantity, contrary to the provisions of s233B(1)(d) of the Customs Act 1901. The quantity of cocaine involved was 9.868 grams gross weight, of which 7549.1 grams were pure. Under schedule VI of the Customs Act 1901 a commercial quantity of cocaine is 2 kilograms pure. The maximum penalty prescribed for this offence is imprisonment for life and or a fine of $750,000 (sub-paragraph 235(2)(c)(i)).

6 The applicant had earlier appealed against his conviction. That appeal was rejected. However there was no issue before this Court that the statement of the facts contained in the judgment of Kirby J in dismissing the appeal was other than correct. Kirby J found as follows :-

“5. The Crown Case : On 29 November 1996 Mr Anderson and Mr Stan Hokafonu attended a travel agency…

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 Anderson

Details

AGLC: R v Anderson [2004] NSWCCA 317
Case: [2004] NSWCCA 317
Decision Date: 17 September 2004

CaseChat Overview and Summary

In this case, the respondent, Anderson, was convicted of being knowingly concerned in the importation of cocaine. The sentencing trial judge adhered to the sentencing parameters outlined in the decisions of Wong and Leung, as cited in 108 A Crim R 53. Although the High Court subsequently overruled these decisions in that particular respect, the sentence given was deemed appropriate. The appeal against sentence was dismissed by the court.

The central legal issue the court had to address was whether the sentence handed down by the trial judge was appropriate given the High Court's subsequent overruling of the sentencing parameters in Wong and Leung. The respondent contended that the sentence was excessive and should be reduced, while the Crown argued that the sentence was appropriate and should be upheld. The court needed to determine whether the trial judge's sentence was in line with the sentencing principles and guidelines applicable at the time of sentencing.

In considering the appeal, the court noted that the trial judge had followed the sentencing parameters set out in Wong and Leung, which were the applicable legal framework at the time of sentencing. The court acknowledged that these parameters had since been overruled by the High Court, but it found that the sentence was appropriate nonetheless. The court considered various factors, including the gravity of the offence, the respondent's criminal history, and the need for general and specific deterrence. The court concluded that the sentence was proportionate to the offence and that the trial judge had exercised his discretion appropriately.

The court dismissed the appeal against sentence, confirming that the sentence imposed by the trial judge was appropriate. The court found that, while the sentencing parameters in Wong and Leung had been overruled by the High Court, the sentence in this case was proportionate to the offence and in line with the sentencing principles and guidelines applicable at the time. The appeal was dismissed, and the sentence stood as imposed by the trial judge.

Orders