Appeal against conviction dismissed; Appeal against sentence allowed; Appellant resentenced
CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - DEEMED SUPPLY OF PROHIBITED DRUG - HELD BY APPELLANT AFTER RECEIVING FROM ONE PERSON FOR PURPOSE OF PASSING TO ANOTHER - DIRECTION THAT APPELLANT MAY BE IN POSSESSION OTHERWISE THAN FOR PURPOSES OF SUPPLY NOT REQUIRED IN THOSE CIRCUMSTANCES - DIRECTIONS AS TO KNOWLEDGE THAT COMMERCIAL QUANTITY OF DRUGS IN POSSESSION SUFFICIENT - CONVICTION SUSTAINED - SENTENCE - STANDARD NON PAROLE PERIOD AND TOTAL TERM IN ACCORDANCE WITH STATUTORY FORMULA IMPOSED - ERROR IN CALCULATING POSITION OF SUBJECT QUANTITY IN RANGE AMOUNTING TO COMMERCIAL QUANTITY - PRIOR RECORD TREATED AS AGGRAVATING FACTOR OF OFFENCE - OMISSION TO ASSESS FACTORS RELEVANT TO SERIOUSNESS OF OFFENCE - INADEQUATE ASSESSMENT OF OTHER EVIDENCE CAPABLE OF AFFECTING DETERMINATION OF WHETHER STANDARD NON PAROLE PERIOD SHOULD BE IMPOSED - RESENTENCE BY THIS COURT APPROPRIATE
Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd 1970 2 NSWR 156 R v Barnier [2001] NSWCCA 459 R v Carey 1990 50 A Crim R 163 R v CWW 1993 70 A Crim R 517 R v EAS, unrep, NSWCCA 26 July 1990 R v Fong, unrep, NSWCCA 20 November 1996 R v Frazer 2002 128 A Crim R 89 R v Johnson [2004] NSWCCA 76 R v Kural 1987 162 CLR 505 R v Lau 1998 105 A Crim R 167 R v Liberti 1991 55 A Crim R 120 R v Shi [2004] NSWCCA 135 R v Tucker, unrep NSWCCA 8 November 1991 R v Way 2004 60 NSWLR 168 R v Wickham [2004] NSWCCA 193 Saad v The Queen 1981 70 ALR 667 Veen v The Queen (No 2) 1998 164 CLR 465
PARTIES:
Regina v Robert Keith Blair
FILE NUMBER(S):
CCA 2004/2731
COUNSEL:
D. Woodburne (Crown) S. Odgers SC (Applicant)
SOLICITORS:
S. Kavanagh (DPP) S.E. O'Connor (Applicant)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
03/21/1193
LOWER COURT JUDICIAL OFFICER:
O'Reilly DCJ
2004/2731
GROVE J JAMES J BARR J
11 March 2005
REGINA v ROBERT KEITH BLAIR
Judgment
1 GROVE J: The appellant stood trial before O’Reilly DCJ and a jury at Penrith District Court on an indictment charging that on 21 March 2003 at Parklea in the State of New South Wales he did supply a prohibited drug namely methylamphetamine, the quantity of which was not less than the commercial quantity prescribed in respect to that prohibited drug.
2 The trial extended from 1 to 4 March 2004 and on the lastmentioned date a verdict of guilty was found by the jury. On 13 May 2004…
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.
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Details
AGLC
R v Blair [2005] NSWCCA 78
Case
[2005] NSWCCA 78
Decision Date
CaseChat Overview and Summary
The appeal arose from a conviction for a deemed supply of a prohibited drug, where the appellant was found to have the drug in their possession after receiving it from one person with the intention of passing it to another. The matter was heard and determined by the High Court of Australia. The primary legal issue the court had to address was whether the trial judge correctly directed the jury regarding the appellant's possession of the drug and the required knowledge of the quantity involved. Additionally, the court needed to assess whether there were any errors in the sentencing process, particularly in calculating the appropriate non-parole period and total term.
The court held that the trial judge did not err in the direction given to the jury about the appellant's possession of the drug. The judge correctly noted that in the circumstances of receiving the drug with the intention to pass it on, it was not necessary to direct that the appellant may be in possession otherwise than for the purpose of supply. The court also found that the trial judge's directions regarding the knowledge of the quantity of the drug were sufficient. However, the court identified several errors in the sentencing process. Firstly, there was an error in calculating the position of the subject quantity in the range amounting to a commercial quantity. Secondly, the court noted that a prior record was treated as an aggravating factor, which was not appropriate. Moreover, there was an omission to assess factors relevant to the seriousness of the offence and an inadequate assessment of other evidence that could have affected the determination of whether the standard non-parole period should be imposed.
Consequently, the court determined that the conviction should be sustained but that a re-sentencing by the court was appropriate to correct the identified errors. The court imposed a new sentence in accordance with the statutory formula, taking into account the correct calculations and a proper assessment of all relevant factors. The final orders included the re-sentencing by the court, with the specific details of the new term to be determined by the relevant authorities.