R-v-CASSAR - [1999] NSWCCA 152

CITATION: R-v-CASSAR [1999] NSWCCA 152 revised - 18/06/99

FILE NUMBER(S): CCA 60090/98

HEARING DATE(S): 28TH May 1999

JUDGMENT DATE:
28 May 1999

PARTIES :

Regina v-Charles Michael CASSAR

JUDGMENT OF: Barr J at 1; McInerney AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0826

LOWER COURT JUDICIAL OFFICER: Rummery DCJ

COUNSEL: For the Applicant: M.A.Green QC
For the Crown: PG Berman

SOLICITORS: For the Applicant; CK Smith
For the Crown : Michael Croke & Co.

CATCHWORDS:

CASES CITED:
Veen No. 2 164 CLR 465

DECISION: The appeal against conviction is dismissed. Leave to appeal against sentence is granted and the appeal allowed. The sentence imposed by H.H. is quashed, as are H.H.'s directions about supervision on parole. In lieu of the sentence imposed, the appellant is sentenced to penal servitude for ten years, comprising a minimum term of seven years and six months, commencing on 16th June 1997 and expiring on 15th December 2004 and an additional term of two years and six months commencing on 16th December 2004 and expiring on 15th June 2007. The appellant will be eligible for release on parole on 15th December 2004.

IN THE COURT OF
CRIMINAL APPEAL

60090/98

BARR J
MCINERNEY AJ
28th MAY 1999

REGINA -v- CHARLES MICHAEL CASSAR

JUDGMENT
1    McINERNEY AJ: This is an application for leave to appeal against sentence by the applicant in relation to a sentence imposed on him by Rummery DCJ on 18 September 1998 for the offence of supply prohibited drug, namely heroin, a large commercial quantity in the amount of three and a half kilograms. His Honour sentenced him to a minimum term of eight years and three months with an additional term of two years and nine months, being a total sentence of eleven years.
2    He had pleaded not guilty to the charge and he was indicted with a fellow associate, one Zoran Udorovic. The trial commenced on 2 February and concluded on 24 February when both were found guilty by the jury.
3    The Crown case is set out by his Honour in some detail and it does not require me to go through it in the same detail, except to point out some salient factors about the matter in order to disclose the serious criminality involved.
4    It appears at about 8.15am on 29 November 1995 the applicant was seen to leave premises at 3 Benalla Crescent Marayong and drive a red Holden Commodore motor vehicle owned by his de facto wife to lot 43 Aldington Road Kemps Creek, where the co-offender Udorovic resided. On arrival at Kemps Creek, he parked in the driveway. The prisoner was then seen in company in the backyard and garage of the premises and in front of the garage. The prisoner Udorovic then wearing a goatee beard, was seen to carry a green duffel bag and place it in the boot of the red Holden after the prisoner Cassar had removed a spare wheel.
5    They were surveilled by…

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-CASSAR

Details

AGLC: R-v-CASSAR [1999] NSWCCA 152
Case: [1999] NSWCCA 152
Decision Date: 28 May 1999

CaseChat Overview and Summary

In Regina v Cassar, the appellant, Charles Michael Cassar, appealed against his conviction and sentence for supplying a large commercial quantity of heroin. The appeal against conviction was dismissed, while the appeal against sentence was allowed. The primary legal issue before the Court was whether the sentence imposed by the District Court was disproportionate to the crime committed and whether there were errors in the sentencing process. The Court found that while the criminality of both the appellant and his co-offender was equal, there were differences in their backgrounds and prospects of rehabilitation that warranted a different sentence. The Court also found that the District Court judge had failed to adjust the sentence after discovering that the appellant was on parole at the time of the offence. The Court allowed the appeal against sentence, quashed the original sentence, and imposed a new sentence of ten years, with a minimum term of seven years and six months and an additional term of two years and six months. The appellant would be eligible for release on parole on 15 December 2004.

The Court of Criminal Appeal held that the appellant's conviction was not subject to appeal as the appeal against conviction had been abandoned. The Court found that the appellant's role in the drug supply operation was significant, but not as sophisticated as his co-offender's role. The Court also found that the appellant had a history of drug-related offences, which demonstrated a propensity for involvement in large-scale drug dealing. The Court considered these factors, along with the disparity in sentences between the appellant and his co-offender, and concluded that the original sentence was excessive. The Court allowed the appeal against sentence, reduced the minimum term by one year to account for the error in not adjusting the sentence due to the appellant being on parole, and imposed a new sentence.

Orders