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R v Bezan

R v Bezan

Case [2004] NSWCCA 342 13 October 2004

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Reported Decision:
147 A Crim R 430

New South Wales

Court of Criminal Appeal

CITATION: Regina v Bezan [2004] NSWCCA 342

HEARING DATE(S): 21/9/04

JUDGMENT DATE:
13 October 2004

JUDGMENT OF: Wood CJ at CL at 1; Buddin J at 41; Shaw J at 42

DECISION: 1. Crown appeal allowed; 2. Sentence below set aside; 3. In lieu, sentence the Respondent to imprisonment for 8 years to commence from 24 August 2003, and to expire on 23 August 2011; 4. Set a non-parole period of 5 years to date from 24 August 2003, and to expire on 23 August 2008, which will be his earliest parole release eligibility date.

CATCHWORDS: CRIMINAL LAW - Crown appeal - import trafficable quantity of heroin - plea of not guilty - whether effect properly given to the consequences of the repeal of s 16G of the Crimes Act - whether the sentence imposed was objectively inadequate having regard to the seriousness of the offence - role of the Respondent in the importation - comparable sentences passed in like cases - appeal allowed.

LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth)
Customs Act 1901

CASES CITED: Everett v The Queen (1994) 181 CLR 295
Griffiths v The Queen (1977) 137 CLR 293
Olbrich v The Queen (1999) 73 ALJR 1550
R v Bavadra (2000) 115 A Crim R 152
R v Dujeu [2004] NSWCCA 164
R v El Karhani (1990) 51 A Crim R 123
R v Kevenaar [2004] NSWCCA 210
R v Laurentiu and Becheru (1992) 63 A Crim R 402
R v Maclay (1990) 19 NSWLR 112
R v Mas Rivadavia [2004] NSWCCA 284
R v Pont (2000) 121 A Crim R 302
R v Quoc Phang Dang [2004] NSWCCA 265
R v Saxon (1996) 86 A Crim R 353
R v Studenikin [2004] NSWCCA 164
R v Van Ich Dang [2004] NSWCCA 269
R v Whyte (2002) 55 NSWLR 252
Regina v Wong and Leung (1999) 48 NSWLR 340
R v Wong and Ng (1988) 39 A Crim R 1
Wong v The Queen (2001) 207 CLR 584

PARTIES :
Regina
Motjaba Bezan

FILE NUMBER(S): CCA CCAP 2004/1716; (formerly 60083/04)

COUNSEL: R Bromwich (Crown)
A Cook (Respondent)

SOLICITORS: S Kavanagh (Crown)
S E O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1128

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

- 1 -

CCAP 2004/1716
(formerly 60083/04)

WOOD CJ at CL
BUDDIN J
SHAW J

Wednesday 13 October 2004

Regina v Motjaba Bezan

Judgment

1 WOOD CJ at CL: The Respondent pleaded not guilty in the District Court to one count of importing, on 24 August 2003, a trafficable quantity of heroin contrary to s 233B(1)(b) of the Customs Act 1901. His trial before Judge Hosking SC and a jury commenced on Monday 16 February 2004 and concluded with a guilty verdict on 19 February 2004.

2 The Respondent was sentenced to imprisonment for 5 years and 6…

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 Bezan

Details

AGLC: R v Bezan [2004] NSWCCA 342
Case: [2004] NSWCCA 342
Decision Date: 13 October 2004

CaseChat Overview and Summary

In the case of R v Bezan, the respondent, Bezan, was convicted for importing a trafficable quantity of heroin into Australia. The case proceeded to the court on appeal by the Crown, challenging the adequacy of the sentence imposed. Bezan had pleaded not guilty to the charge. The court was tasked with determining whether the trial judge had appropriately considered the consequences of the repeal of section 16G of the Crimes Act and whether the sentence imposed was objectively inadequate in light of the gravity of the offence. Furthermore, the court had to assess Bezan's role in the importation and compare the sentence with those imposed in similar cases.

The central legal issues revolved around the interpretation of the trial judge's consideration of the legislative changes and the proportionality of the sentence. The Crown argued that the trial judge had not sufficiently weighed the effect of the repeal of section 16G and that the sentence was inadequate given the serious nature of the offence. The court was required to examine the extent of Bezan's involvement in the importation and the appropriate sentencing guidelines applicable to such cases.

In its reasoning, the court found that the trial judge had not adequately addressed the impact of the legislative changes on the sentencing. The court noted that the absence of a specific reference to the repealed section had implications for the overall sentencing framework. Additionally, the court considered the severity of the offence, Bezan's role, and the sentences in comparable cases. It concluded that the sentence imposed was objectively inadequate and did not reflect the seriousness of the crime. Consequently, the appeal was allowed, and the case was remitted for resentencing.

The final orders of the court were to allow the Crown's appeal, set aside the original sentence, and remit the matter to the trial court for resentencing. The court emphasised the importance of considering the full context of the offence and the legislative framework in determining an appropriate sentence.

Orders