PARTIES: Regina (Respondent) Susan Diane Carter (Appellant)
JUDGMENT OF: Ipp JA Dunford J Greg James J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 01/51/0199
LOWER COURT JUDICIAL OFFICER: Patten DCJ
COUNSEL: P Miller - Respondent H Cox - Appellant
SOLICITORS: SE O'Connor - Respondent DJ Humphreys - Appellant
CATCHWORDS: Criminal Law and Practice - drugs - ongoing supply for financial or material reward - whether evidence that accused received the financial reward on one of the occasions - whether reasonable inference. Criminal Law - sentencing - special circumstances - longer non parole period to facilitate rehabilitation - need to show that if such a longer period is allowed, rehabilitation will probably be successful.
DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal dismissed.
JUDGMENT:
- 1 -
IN THE COURT OF CRIMINAL APPEAL
060211/03
IPP JA DUNFORD J GREG JAMES J
MONDAY 1 SEPTEMBER 2003
R v SUSAN DIANE CARTER
Judgment
DUNFORD J: This is an appeal by Susan Diane Carter against her conviction on one count of ongoing supply of prohibited drug contrary to s 25A (1) of the Drug Misuse and Trafficking Act1985, and an application for leave to appeal against the sentence imposed upon her following such conviction. The s 25A (1) is as follows:
“A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both”
It is not disputed that there was evidence available to satisfy the jury that on three occasions during the relevant period of thirty consecutive days the appellant supplied a prohibited drug namely heroin. The issue in the appeal is whether there was evidence from which it was open to the jury to find that she did it on the third of those occasions for financial or material reward. The relevant facts may briefly be summarised as follows.
An undercover police officer referred to in the trial and hereafter as “Sally” went to Allsop Park in Nimbin at about 9.30am on 21 April 2001. She subsequently spoke to a person, Cindy McHattan, and Sally followed her to where the appellant sat at a table in the park. Sally heard Ms McHattan say, “She wants 50 of H,” and saw Ms McHattan hand to the appellant $50 which she, Sally, had previously given to her. The appellant then reached into a bag and took out a small clear plastic bag of white powder which was later analysed as heroin which she gave to Ms McHattan and Ms McHattan gave the bag to Sally who was sitting next to her.
On 2…
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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AGLC
R v Carter [2003] NSWCCA 243
Case
[2003] NSWCCA 243
Decision Date
CaseChat Overview and Summary
In the case of R v Carter, the appellant was charged with ongoing supply of a dangerous drug for financial or material reward. The case was heard in the Court of Appeal, which was required to determine whether the evidence established that the accused received the financial reward on one of the occasions and if it was a reasonable inference to draw. Additionally, the court had to consider whether a longer non-parole period should be imposed to facilitate the accused's rehabilitation, and if so, whether it could be shown that such a period would likely result in successful rehabilitation.
The court examined the evidence presented and concluded that there was sufficient evidence to establish that the appellant received the financial reward on one occasion. The court found that it was a reasonable inference to draw from the circumstances presented. Furthermore, the court considered the special circumstances of the case and the need for a longer non-parole period to facilitate rehabilitation. The court noted that the appellant's prospects for rehabilitation were good, and that a longer non-parole period would provide the necessary time for successful rehabilitation.
Ultimately, the court found that the evidence was sufficient to support the inference that the appellant received the financial reward on one occasion, and that a longer non-parole period was warranted to facilitate the appellant's rehabilitation. The court determined that the appellant's prospects for rehabilitation were good and that the longer non-parole period would likely result in successful rehabilitation. Therefore, the court upheld the sentence imposed by the lower court.
The final orders of the court were to affirm the sentence imposed by the lower court, with the non-parole period extended to facilitate the appellant's rehabilitation. The court also noted that the appellant's prospects for rehabilitation were good and that the longer non-parole period would provide the necessary time for successful rehabilitation.