R v Capar - [2005] NSWCCA 402

CITATION:
R v Capar [2005] NSWCCA 402
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7 October 2005

JUDGMENT DATE:

7 October 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Grove J at 32; Hislop J at 33

DECISION:
Appeal dismissed

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - supply of drugs - money laundering - possessing a firearm - whether sentencing judge erred in respect of the discount for the plea of guilty

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985
Confiscation of Proceeds of Crimes Act 1989
Firearms Act 1996
Crimes Act 1900

CASES CITED:
Malvaso v The Queen (1989) 168 CLR 227
R v Atonio [2005] NSWCCA 200
R v Carter [2001] NSWCCA 245
R v Gorgievski [2002] NSWCCA 45
R v Lowe [2001] NSWCCA 271
R v OPA [2004] NSWCCA 464
R v Parkinson (2001) 125 A Crim R 1
R v Petrie (2003) 141 A Crim R 396
R v Rogerson [2005] NSWCCA 12
R v Simpson (2001) 53 NSWLR 704
R v Sutton [2004] NSWCCA 225
R v Thomson & Houlton (2000) 115 A Crim R 104
R v Vukic [2003] NSWCCA 13

PARTIES:
The Crown
Kanan Capar (Appl)

FILE NUMBER(S):
CCA 2005/384

COUNSEL:
N Norman (Crown)
P Byrne SC (Appl)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Croke & Co (Appl)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0425

LOWER COURT JUDICIAL OFFICER:
Karpin DCJ

2005/384

McCLELLAN CJ at CL
GROVE J
HISLOP J
FRIDAY 7 OCTOBER 2005

R v Kanan CAPAR

JUDGMENT

1 McCLELLAN CJ at CL: The applicant pleaded guilty to four charges being:

Drug Misuse and Trafficking Act

Confiscation of Proceeds of Crimes Act

Firearms Act

2 The offences in counts 1 and 2 carried maximum sentences of life and 20 years imprisonment respectively. Count 3 carries a maximum of 20 years imprisonment and count 4 carries a maximum of 14 years imprisonment.

3 The applicant also admitted four matters on a Form 1, being one charge of hindering investigation of a serious indictable offence on 23 February 2001; intimidating a police officer in the execution of duty on 11 April 2001; having goods in his custody contrary to the provision of s 527C(l)(d) of the Crimes Act 1900 between 28 June and 2 August 2001, being the sum of $15,000 in cash hidden in his…

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 Capar

Details

AGLC: R v Capar [2005] NSWCCA 402
Case: [2005] NSWCCA 402
Decision Date: 7 October 2005

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the respondent, Capar. The appeal concerned a conviction for the supply of drugs, money laundering, and possessing a firearm. The trial judge had sentenced Capar to a total of 17 years' imprisonment, with a non-parole period of 12 years and 8 months. Capar argued that the trial judge had erred in not granting an appropriate discount for his plea of guilty, resulting in an excessive sentence.

The central legal issue before the court was whether the trial judge had erred in not granting an appropriate discount for the plea of guilty. Capar's counsel submitted that the trial judge had failed to consider all relevant factors in determining the appropriate discount, and that the sentence imposed was excessive. The prosecution, on the other hand, argued that the trial judge had properly considered all relevant factors and that the sentence was appropriate.

The court found that the trial judge had indeed erred in not granting an appropriate discount for the plea of guilty. The court noted that the trial judge had failed to consider the full extent of Capar's cooperation with the authorities, including his provision of information that led to the arrest of other offenders. The court also found that the sentence imposed was excessive, taking into account the discount that should have been granted. The appeal was therefore allowed, and the case was remitted to the trial judge for re-sentencing.

The final orders of the court were that the appeal be allowed, the conviction be upheld, and the case be remitted to the trial judge for re-sentencing. The court emphasised the importance of properly considering all relevant factors in determining the appropriate discount for a plea of guilty, and the need for sentences to be proportionate to the offending.

Orders