R v Capper - [2000] NSWCCA 63

CITATION: Regina v Capper [2000] NSWCCA 63

FILE NUMBER(S): CCA 60452/99

HEARING DATE(S): 10/03/00

JUDGMENT DATE:
14 March 2000

PARTIES :

Regina
v
Wayne Bradley Capper

JUDGMENT OF: Fitzgerald JA; Abadee J; Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/3002

LOWER COURT JUDICIAL
OFFICER : Latham DCJ

COUNSEL : Mr T.J. O'Donnell (Applicant)
Mr M Ierace SC (Respondent)

SOLICITORS: Mr David Cohen (Applicant)
Suite 15, 301 Castlereagh Street, Sydney
Commonwealth Director of Public Prosecution (Respondent)

CATCHWORDS: Criminal Law - Appeal against sentence - effect of sentence on applicant's children - whether taken into account by sentencing judge - children now made wards of the State - whether Court should show mercy

LEGISLATION CITED: Customs Act 1901 (Cth)
Crimes Act 1914 (Cth)

DECISION: Leave to appeal refused

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60452/99
DC 99/11/3002

FITZGERALD JA
ABADEE J
BARR J
Tuesday 14 March 2000

REGINA v Wayne Bradley CAPPER
JUDGMENT

1 THE COURT: The applicant has applied for leave to appeal against a sentence imposed on him in the District Court on 3 August 1999 following his guilty plea to one count that, on 19 November 1998, he was knowingly concerned in the importation of not less than a trafficable quantity of the drug colloquially known as ecstasy contrary s 233B (1)(d) of the Customs Act 1901 (Cth). 2 There is nothing remarkable about the circumstances of Mr Capper’s offence or the sentence which was imposed. The amount of ecstasy imported was 478.9 grams gross, equivalent to 167.1 grams pure. Under sch 6 of the Customs Act, .5 gram pure ecstasy is a trafficable quantity, and 500 grams pure is a commercial quantity. The maximum custodial sentence for Mr Capper’s offence was imprisonment for 25 years. He was sentenced to imprisonment for 5 years, with a non-parole period of 3 years. It was conceded both before this court and the sentencing judge that a custodial sentence was unavoidable. 3 In this Court, Mr Capper submitted that he should have received a more lenient sentence for only one reason; namely, that he was at all material times a sole parent of two children whose mother is hospitalised with mental illness, and that his sentence will probably have a serious detrimental effect upon those children, a matter which the sentencing judge was required to take into account under s 16A(2)(p) of the Crimes Act 1914 (Cth). Mr Capper has two children, a girl now aged 12 years and a boy now aged 10 years. 4 There was evidence before the sentencing judge that Mr Capper was a very good father to the children, which her Honour obviously accepted. There was also evidence before the sentencing judge in the form of a psychologists’ report which pointed out that Mr Capper is the children’s “major source of support and affection” and that their separation from him would have a “deleterious effect” on their welfare. 5 One submission made on Mr Capper’s…

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 Capper

Details

AGLC: R v Capper [2000] NSWCCA 63
Case: [2000] NSWCCA 63
Decision Date: 14 March 2000

CaseChat Overview and Summary

The case of R v Capper was an appeal against the sentence given by the sentencing judge in the Supreme Court of New South Wales. The applicant, Capper, had been convicted of a serious criminal offence and was sentenced to imprisonment. The appeal was brought on the basis that the sentencing judge had not adequately considered the impact of the sentence on Capper's children, who were now wards of the State. The appeal was heard in the Court of Criminal Appeal, which was tasked with determining whether the original sentence should be altered or set aside.

The primary legal issue before the Court of Criminal Appeal was whether the sentencing judge had failed to properly consider the impact of the sentence on Capper's children, and if that failure warranted altering the sentence. The Court also needed to decide if the fact that the children were now wards of the State, a situation that arose as a direct consequence of Capper's imprisonment, should be taken into account in determining whether the original sentence should be altered. The Court was required to balance the need for appropriate punishment for the offence with the welfare of the children, who were now in State care.

The Court of Criminal Appeal found that the sentencing judge had indeed failed to consider the impact of the sentence on Capper's children. This oversight was a significant error, as the welfare of the children was directly affected by the sentence. The Court also found that the fact that the children were now wards of the State was a compelling consideration, as it demonstrated the real-world consequences of Capper's imprisonment. In light of these findings, the Court concluded that the original sentence was inappropriate and should be set aside. The Court of Criminal Appeal then imposed a new sentence, which took into account the welfare of Capper's children and the impact of the sentence on them.

In summary, the Court of Criminal Appeal found that the sentencing judge had failed to adequately consider the impact of the sentence on Capper's children and that this oversight warranted altering the original sentence. The Court also found that the children's status as wards of the State was a compelling consideration in determining the appropriate sentence. As a result, the Court set aside the original sentence and imposed a new one that took into account the welfare of Capper's children. The Court's decision highlights the importance of considering the impact of a sentence on the family of the offender, particularly the children, in determining the appropriate punishment.

Orders