R v Carter - [2000] NSWCCA 490

CITATION: R v CARTER [2000] NSWCCA 490

FILE NUMBER(S): CCA 60624/99

HEARING DATE(S): 20/11/2000

JUDGMENT DATE:
20 November 2000

PARTIES :

REGINA v Suzanne Margaret Jean CARTER

JUDGMENT OF: Barr J at 1; Carruthers AJ at 17

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0323

LOWER COURT JUDICIAL
OFFICER : Howie DCJ

COUNSEL : Crown: PG Berman SC
Applicant: In Person

SOLICITORS: Crown: SE O'Connor
Applicant: In Person

LEGISLATION CITED: Crimes Act, s 558
Drug Misuse and Trafficking Act, s 25A

DECISION: Leave to appeal granted; appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60624/99

BARR J
CARRUTHERS AJ
Monday, 20 November 2000

REGINA v Suzanne Margaret Jean CARTER

JUDGMENT

1   BARR J: Suzanne Margaret Jean Carter seeks leave to appeal against the sentence imposed by Howie DCJ of Queen’s Counsel, as his Honour then was, in the District Court.
2 The applicant pleaded guilty before a magistrate and was committed to the District Court for sentence on a charge under s 25A Drug Misuse and Trafficking Act that she supplied prohibited drugs on an ongoing basis. The applicant asked his Honour to take into account other instances of the possession and supply of drugs. The applicant was in the business of supplying heroin at street level. Between 25 May and 3 June 1999 she supplied small quantities of heroin on five occasions to an undercover police officer. After her arrest she told the police that she had supplied the drug on other occasions between January and May of the same year. That activity formed the basis of the matter provided for in one of the offences his Honour was required to take into account.
3   His Honour sentenced the applicant to imprisonment for three years, comprising a minimum term of two years and an additional term of one year. The maximum custodial penalty for an offence under this section is twenty years’ imprisonment.
4   A number of submissions were made in support of the applicant’s contention that the sentence was manifestly excessive. The first was that whereas his Honour regarded as an aggravating feature the fact that the applicant was bound by a recognisance to be of good behaviour when she committed the offences she was “not technically on the recognisance”.
5 The record shows that on 5 September 1997 the applicant appealed against convictions for driving under the influence of alcohol and self-administration of heroin, that the convictions were confirmed and that the applicant was given the benefit on each of a three year recognisance under s 558 Crimes Act. The applicant was later reported for a breach of those recognisances and was ultimately sentenced to a three month fixed term in July 1999 as a result.
6   It is submitted that because at the time the applicant committed the offences against whose sentences she now appeals there existed a breach report concerning those recognisances, the recognisances had as a matter of law come to an end. In my opinion there is no substance in…

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 Carter

Details

AGLC: R v Carter [2000] NSWCCA 490
Case: [2000] NSWCCA 490
Decision Date: 20 November 2000

CaseChat Overview and Summary

Suzanne Margaret Jean Carter appealed against the sentence imposed on her by Howie DCJ in the District Court for the supply of prohibited drugs on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act. The applicant pleaded guilty and was sentenced to imprisonment for three years, with a minimum term of two years and an additional term of one year. The maximum penalty for this offence is twenty years’ imprisonment. The applicant contended that the sentence was manifestly excessive, arguing that the District Court judge had erred by considering her recognisances as an aggravating factor and that there were insufficient statistics of sentences for similar offences for comparison. Additionally, the applicant claimed that she had a justifiable sense of grievance due to the sentence imposed on her co-offender, Liane Sara Kelly, who received a lesser sentence.

The Court of Criminal Appeal considered the arguments presented and determined that the sentence imposed by Howie DCJ was within the proper range of sentencing discretion. The Court found that the applicant's recognisances were still in effect at the time of the commission of the offences and that the lack of statistics for similar offences did not render the sentence excessive. The Court also concluded that the applicant did not have a justifiable sense of grievance in comparison to the sentence imposed on her co-offender, Liane Sara Kelly. The Court granted leave to appeal but dismissed the appeal.

The Court's order was to grant leave to appeal but dismiss the appeal, as proposed by Barr J. Carruthers AJ agreed with the decision.

Orders