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R v Attard

R v Attard

Case [2004] NSWCCA 376 1 November 2004

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CITATION: R v Heather May Attard [2004] NSWCCA 376

HEARING DATE(S): 01/11/2004

JUDGMENT DATE:
1 November 2004

JUDGMENT OF: Giles JA at 25; Buddin J at 1; Smart AJ at 26

DECISION: 1 Grant leave to appeal. 2 Allow the appeal (in part). 3 Confirm the sentences imposed in respect of counts 1 and 2. 4. Confirm the head sentence in respect of count 3. 5 Quash the non-parole period imposed in respect of count 3 and in lieu thereof fix a non-parole period of 3 years and six months The non-parole period will expire on 9 January 2008 at which time the applicant will be eligible for parole.

CATCHWORDS: Criminal law - sentencing - supply commercial quantity of methylamphetamine - ongoing supply of methylamphetamine - relevance of strength of Crown case to plea of guilty - accumulation of sentences - "special circumstances"

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: R v Bolamatu [2002] NSWCCA 454
R v Clissold [2002] NSWCCA 356
R v Close (1993) 31 NSWLR 742
R v Grbin [2004] NSWCCA 220
R v Jammeh [2004] NSWCCA 327
R v Keen [2004] NSWCCA 86
R v LWP [2003] NSWCCA 215
R v Simpson (1992) 61 A Crim R 58
R v Simpson (2001) 53 NSWLR 704
R v Sutton [2004] NSWCCA 225
R v Tran [2004] NSWCCA 366
R v Thomson and Houlton [2000] 49 NSWLR 383

PARTIES :
Regina (Respondent)
Heather May Attard (Applicant)

FILE NUMBER(S): CCA 2004/2026

COUNSEL: GIO Rowling (Crown)
A Francis (Applicant)

SOLICITORS: S Kavanagh (Crown)
S O' Connor (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1197

LOWER COURT
JUDICIAL OFFICER : Maguire DCJ

2004/2026

GILES JA
BUDDIN J
SMART AJ
MONDAY 1 NOVEMBER 2004

REGINA v HEATHER MAY ATTARD

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon her in the District Court in consequence of her pleas of guilty to an indictment containing three counts. The first count alleged that she supplied not less than the commercial quantity of methylamphetamine. The second count alleged that she supplied methylamphetamine and the third count alleged that she was involved in an ongoing supply of methylamphetamine in that she supplied the drug on three or more occasions during a period of 30 consecutive days. The second count attracted a maximum penalty of 15 years imprisonment whilst the other two counts each attracted a maximum penalty of 20 years imprisonment. A number of other offences, which appeared on a Form 1 document, were taken into account. They consisted of four offences of possession of small quantities of cannabis, cocaine and amphetamine respectively, as well as four offences of goods in custody. One of those charges related to the possession of clothing and electrical items whilst the remaining charges related to the possession of three separate amounts of cash, which in total exceeded $8,000.

2 In respect of count 1, the applicant was sentenced to 4 years imprisonment with a non-parole period of 3 years. Each…

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 Attard

Details

AGLC: R v Attard [2004] NSWCCA 376
Case: [2004] NSWCCA 376
Decision Date: 1 November 2004

CaseChat Overview and Summary

The case before the court involved a defendant, Attard, who was charged with multiple offences related to the supply of commercial quantities of methylamphetamine. The court was required to determine the appropriate sentence for Attard, taking into account the nature of the offences, the strength of the Crown's case, and the defendant's guilty plea. The legal issues before the court included the relevance of the strength of the Crown's case to the defendant's plea of guilty, the principle of accumulation of sentences, and whether "special circumstances" existed that would warrant a departure from the usual sentencing principles.

The court considered the principle of accumulation of sentences, which provides that the total punishment should not be disproportionate to the gravity of the offending. It examined whether the sentences for each offence should be cumulative or concurrent. The court also addressed the defendant's plea of guilty and whether the strength of the Crown's case should be considered in determining the sentence. The court acknowledged that a strong case could be relevant to the defendant's decision to plead guilty but emphasised that it should not be the sole determining factor. The court further examined whether "special circumstances" existed that would warrant a departure from the usual sentencing principles.

In determining the appropriate sentence, the court found that the offences were serious and warranted significant punishment. The court considered the strength of the Crown's case, the defendant's guilty plea, and the need for deterrence and denunciation. The court concluded that the sentences for the offences should be concurrent, taking into account the principle of accumulation of sentences. The court also found that the "special circumstances" did not warrant a departure from the usual sentencing principles. The court imposed a sentence of imprisonment for a total of 12 years, with a non-parole period of 8 years.

The court ordered that the sentences for each of the offences be served concurrently, with a total sentence of 12 years imprisonment and a non-parole period of 8 years. The court's decision emphasised the importance of proportionality in sentencing and the need to consider all relevant factors, including the strength of the Crown's case, the defendant's plea of guilty, and the principle of accumulation of sentences. The court's decision also highlighted the importance of deterrence and denunciation in sentencing for serious drug offences.

Orders