Legal Research
Cases
R v Carrion

R v Carrion

Case [2000] NSWCCA 191 26 May 2000

Type to search within this case.

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Carrion [2000] NSWCCA 191

FILE NUMBER(S):
60648/99

HEARING DATE(S): Friday 12 May 2000

JUDGMENT DATE: 26/05/2000

PARTIES:
Regina v Roy Carrion

JUDGMENT OF: Spigelman CJ Wood CJ at CL Foster AJA Grove J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0890

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
P.G. Berman with M. Grogan (Crown/Applicant)
J.S. Stratton (Respondent)

SOLICITORS:
S.E. O'Connor (Applicant)
T.A. Murphy (Respondent

CATCHWORDS:
Criminal Law and Procedure
Sentence
Crown Appeal Against Inadequacy
Drug Trafficking
Absence of Exceptional Circumstances
Full Time Custody Required
Resentence
Applicability of Crimes (Sentencing Procedure) Act 1999 After Successful Crown Appeal Against Original Sentence Imposed Prior to Proclamation of that Act.

LEGISLATION CITED:
Sentencing Act 1989
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Crimes Legislation Amendment (Sentencing) Act 1999
Interpretation Act Act 1987

DECISION:
Crown Appeal Allowed
Respondent Resentenced.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60648/99

SPIGELMAN CJ
  WOOD CJ at CL
  FOSTER AJA
  GROVE J
  JAMES J

Friday 26 May 2000

REGINA v ROY CARRION

JUDGMENT

1 SPIGELMAN CJ:An issue has arisen as to the appropriate form of the order for this Court to make in the case of a successful Crown appeal. When the Respondent was sentenced by Woods DCJ the sentence was imposed pursuant to the provisions of the Sentencing Act 1989 then in force. Section 5 of that Act would have required his Honour, if he had imposed a full time custodial sentence, to have fixed a minimum term and then an additional term. That Act is now repealed. The equivalent provision under s44 of the Crimes (Sentencing Procedure) Act 1999 requires the identification of a term and then a non-parole period.

2 In what form should this Court make a new sentence upon a successful Crown appeal? The issue is one of statutory construction.

3 The matter comes before this Court pursuant to s5D of the Criminal Appeal Act 1912 which relevantly provides:

“5D(1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper”.

4 Of particular significance for present purposes is that the statutory power is conferred in terms of the formulation “vary the sentence”. This is in contrast with s6(3) of the Act with respect to appeals by convicted persons against severity of a sentence, which is in the following terms:

“6(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal”.

This power expressly provides…

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 Carrion

Details

AGLC: R v Carrion [2000] NSWCCA 191
Case: [2000] NSWCCA 191
Decision Date: 26 May 2000

CaseChat Overview and Summary

The case of R v Carrion involved a criminal appeal by the Crown against the sentence imposed on the respondent, Carrion, for drug trafficking. The primary issue before the court was whether the original sentence was inadequate and if the Crimes (Sentencing Procedure) Act 1999 should apply to the resentencing process. The case was heard in the relevant Australian appellate court, which had to determine whether the sentence met the statutory requirements for drug trafficking offences and whether exceptional circumstances existed to warrant a departure from the full-time custody requirement.

The court was required to decide if the original sentence imposed on Carrion was inadequate, considering the seriousness of the drug trafficking offence. Additionally, the court had to determine whether the resentencing process should adhere to the provisions of the Crimes (Sentencing Procedure) Act 1999, which came into effect after the original sentence was imposed. The court also needed to assess whether there were exceptional circumstances that would allow for a departure from the mandatory full-time custody requirement.

In delivering the judgment, the court found that the original sentence was inadequate given the seriousness of the drug trafficking offence. The court held that the Crimes (Sentencing Procedure) Act 1999 applied to the resentencing process, as the Act was in force at the time of the appeal. The court further determined that no exceptional circumstances existed to warrant a departure from the mandatory full-time custody requirement. Consequently, the court ordered a resentencing of Carrion, mandating that full-time custody be imposed in accordance with the statutory requirements.

The court ordered that Carrion be resentenced to a term of full-time custody, as mandated by the Crimes (Sentencing Procedure) Act 1999. The court's decision emphasised the importance of ensuring that sentences for drug trafficking offences reflect the gravity of the crime and that any resentencing adheres to the relevant statutory provisions.

Orders