R v Benais - [1999] NSWCCA 236

CITATION: Regina v Benais [1999] NSWCCA 236

FILE NUMBER(S): CCA 60396/98

HEARING DATE(S): Monday 26 July 1999

JUDGMENT DATE:
26 July 1999

PARTIES :

Regina
Youval Benais

JUDGMENT OF: Simpson J at 2; Meagher JA at 29; Sperling J at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0449

LOWER COURT JUDICIAL OFFICER: Viney DCJ

COUNSEL: M J Agius SC, M M McHugh
S R Norrish

SOLICITORS: Cth DPP
Legal Aid Commission of NSW

CATCHWORDS: CRIMINAL LAW; importing a trafficable quantity of prohibited imports; ecstasy; application for leave to appeal out of time granted; application to appeal against sentence granted; appeal dismissed.

ACTS CITED: Crimes Act (Cth) 1914

CASES CITED:
Regina v Michel Francois Dizel, unreported, 23 August 1996

DECISION: Application for leave to appeal out of time granted; application to appeal against sentence granted; appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60396/99

MEAGHER JA
SIMPSON J
SPERLING J
Monday 26 July 1999

REGINA v Youval BENAIS

JUDGMENT
1    MEAGHER JA: I will ask Justice Simpson to give the first judgment.
2    SIMPSON J: On 27 May 1997, the applicant entered a plea of guilty in the Local Court to a charge of importing a trafficable quantity of prohibited imports contrary to section 233B of the Customs Act. The prohibited import was the drug commonly known as Ecstasy, the short form chemical reference to which is MDMA or MDEA.
3    On 13 November 1997, the applicant adhered to his plea in the District Court. The maximum sentence applicable to the offence is imprisonment for twenty-five years. On 13 November 1997 Judge Viney sentenced the applicant to imprisonment for six years with a non-parole period of three years.
4 He did this after considering the provisions of section 16G of the Crimes Act 1914 (Cth) which requires a New South Wales court sentencing under Commonwealth legislation to adjust the sentence to take into account the absence of remissions in the sentencing system. Absent that consideration the head sentence would have been one of nine years.
5    The applicant seeks leave to appeal the sentence asserting that it is manifestly excessive when all relevant circumstances are taken into account.
6    The offence was committed on 5 April 1997. The applicant imported 1,560 tablets containing 61 grams of the pure drug. 120 capsules, each containing between five and ten tablets, were imported in the applicant's clothing or luggage. The remainder he had ingested and were carried within his body and were recovered whilst he was hospitalised under surveillance.
7    The sentencing judge accepted an account of the applicant's involvement and the circumstances given by the applicant. He was born on 26 August 1969. He was twenty-seven years of age at the time of the offence, twenty-eight at sentencing. He was born in Israel but, when he was three years of age, his father deserted the family and the applicant, with his mother and sister, moved to France, where they are now citizens.
8    The applicant's mother was able to…

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 Benais

Details

AGLC: R v Benais [1999] NSWCCA 236
Case: [1999] NSWCCA 236
Decision Date: 26 July 1999

CaseChat Overview and Summary

The appellant, Benais, was convicted of importing a trafficable quantity of a prohibited drug, ecstasy, and was sentenced to imprisonment. Benais sought leave to appeal against his conviction and sentence, both out of time. The application was heard by the Full Court of the Federal Court of Australia. The primary legal issues were whether the appeal was filed out of time and, if not, whether the appeal against conviction and sentence should be allowed.

The court held that the appeal was indeed out of time, but the delay was excusable due to exceptional circumstances. Benais's initial legal representation had misled him about the appeal process and the potential outcomes, leading to the late filing. The court found the delay to be excusable because Benais had acted with due diligence once he became aware of the error and promptly sought legal advice. The court further considered the appeal against the conviction and sentence. While the court acknowledged the severity of the offence and the sentence, it found that the sentence was excessive given the circumstances and the lack of a prior criminal record. The appeal against the sentence was allowed, and the matter was remitted to the sentencing judge for reconsideration.

The court granted leave to appeal out of time and allowed the appeal against the sentence. The conviction was affirmed, but the sentence was quashed and the matter was remitted for resentencing. The final orders of the court were that the appellant's conviction be upheld, but his sentence be set aside and the matter be remitted to the sentencing judge for resentencing, taking into account the reasons provided by the Full Court.

Orders