R v Capar - [2002] NSWCCA 517

Reported Decision:
(2002) 136 A Crim R 564

New South Wales

Court of Criminal Appeal

CITATION: R v Capar [2002] NSWCCA 517

FILE NUMBER(S): CCA 60452/02

HEARING DATE(S): 18 December 2002

JUDGMENT DATE:
18 December 2002

PARTIES :

Yasin Caper (Respondent)

JUDGMENT OF: Mason P at 31; James J at 32; Dunford J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 02/11/0388

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : GIO Rowling (Crown)
A Leary (Respondent)

SOLICITORS: SE O'Connor (Crown)
Leary & Company (Respondent)

CATCHWORDS: SENTENCING - Crown appeal - drug & firearm offences - pleas of guilty - assistance to authorities

LEGISLATION CITED: Criminal Appeal Act 1912, s 5D
Drug Misuse and Trafficking Act 1985, ss 25, 33
Confiscation of Proceeds of Crime Act 1989, s 73
Crimes Act 1900, s 93G
Crimes (Sentencing Procedure) Act 1999, ss 22, 23, 33

CASES CITED:
R v Thomson (2000) 49 NSWLR 383
Pearce v The Queen (1998) 194 CLR 610
R v Simpson [2001] NSWCCA 534, 53 NSWLR 704
R v S [2000] NSWCCA 13, 111 A Crim R 225

DECISION: Appeal dismissed; sentences affirmed.

60452/02

MASON P
BRUCE JAMES J
DUNFORD J
Wednesday, 18 DECEMBER 2002

R v Yasin CAPAR

Judgment

1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the alleged inadequacy of the sentences imposed upon the respondent, Yasin Capar, by his Honour Judge Shadbolt on 19 September 2002 and subsequently corrected by his Honour on 11 October 2002. A notice of appeal was served on the respondent on 1 October 2002 and the amended notice of appeal was filed and served on 18 October 2002.

2 The respondent was sentenced following his pleas of guilty on four counts: firstly, supply not less than a large commercial quantity of a prohibited drug (heroin), contrary to the provisions of s 25(2) of the Drug Misuse and Trafficking Act 1985, the maximum penalty for which is life imprisonment or a fine of $550,000, or both: s 33(3); secondly, supply not less than a commercial quantity of a prohibited drug (cocaine), contrary to the provisions of s 25(2) of the Drugs Misuse and Trafficking Act 1985, the maximum penalty for which is imprisonment for twenty years or a fine of $385,000, or both: s 33(2); thirdly, money laundering contrary to the provisions of s 73(2) of the Confiscation of Proceeds of Crime Act 1989, the maximum penalty for which is twenty years or a fine of $220,000 or both, and fourthly, discharge of a firearm in a manner likely to injure another person contrary to the provisions of s 93G(1)(c) of the Crimes Act 1900, the maximum penalty for which is imprisonment for ten years.

3 At the same time the learned sentencing Judge was asked to take into account in accordance with the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999

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 [2002] NSWCCA 517
Case: [2002] NSWCCA 517
Decision Date: 18 December 2002

CaseChat Overview and Summary

The appellant, Capar, was convicted in the County Court for various drug and firearm offences. He had entered a guilty plea in respect of all charges. The prosecution appealed against the sentence imposed by the County Court, seeking a harsher penalty. Capar, on the other hand, sought a confirmation of the original sentence, arguing that the County Court had taken into account his substantial assistance to the authorities.

The primary legal issues before the court were the appropriate weight to be given to Capar's assistance to the authorities and the principles of sentencing for drug and firearm offences. The court had to balance the severity of the crimes with the mitigating factor of the appellant's cooperation with law enforcement. The court also considered the need for deterrence and the protection of the community.

The court found that the County Court had correctly identified the appellant's assistance as a significant mitigating factor. However, it held that the sentence imposed was too lenient given the seriousness of the offences and the need for general deterrence. The court noted that while the appellant's cooperation was commendable, it did not fully offset the gravity of the crimes committed. The Crown's appeal was thus upheld, and the case was remitted to the County Court for re-sentencing. The court emphasised that the new sentence should reflect the appellant's substantial assistance but also adequately address the community's need for protection and deterrence.

Orders