R v CBK

Case [2002] NSWCCA 457 15 November 2002

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Reported Decision:
(2002) 135 A Crim R 260

New South Wales

Court of Criminal Appeal

CITATION: REGINA v CBK [2002] NSWCCA 457

FILE NUMBER(S): CCA 60229/02

HEARING DATE(S): 15/11/02

JUDGMENT DATE:
15 November 2002

PARTIES :

REGINA
CBK (Applicant)

JUDGMENT OF: Wood CJ at CL at 56; Dowd J at 59; Bell J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 02/11/0144

LOWER COURT JUDICIAL
OFFICER : Woods DCJ

COUNSEL : GIO Rowling (Crown)
CT Loukas (Applicant)

SOLICITORS: SE O'Connor
DJ Humphreys

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act 1985

CASES CITED:
R v Bacon [2000] NSWCCA 549
R v BJW [2000] NSWCCA 60; 112 A Crim R 1
R v Butcher [2001] NSWCCA 188
R v Fogg [2002] NSWCCA 395
R v Hennock [2002] NSWCCA 229
R v Hofer [2001] NSWCCA 544
R v Hoon & Pouoa [2000] NSWCCA 137
R v Khaled [2001] NSWCCA 169
R v L (Unreported) NSWCCA, 17 June 1996
R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47
R v Smith [2002] NSWCCA 378
R v Vachelac [1981] 1 NSWLR 351

DECISION: Leave to appeal granted; Appeal allowed; Sentence imposed in the court below confirmed; Non-parole period with respect to count 3 is varied to 2 years to commence from 27.08.03 and to expire 26.08.05

60229/02

WOOD CJ at CL
DOWD J
BELL J
15 November 2002

REGINA v CBK

Judgment

1 BELL J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the Sydney District Court on 17 April 2002. On that date the applicant pleaded guilty on indictment to the following three offences:

2 The offences charged counts 1 and 2 were brought pursuant to s 25(1) & s 29 of the Drugs Misuse and Trafficking Act 1985 (“the DMT Act”). A penalty of fifteen years imprisonment and/or 2000 penalty units applies with respect to these offences. The offence charged in count 3 was brought pursuant to s 25A of the Drugs Misuse and Trafficking Act. It carries a maximum penalty of twenty years imprisonment and/or 3,500 penalty units.

3 In respect of the events charged in count 3, the applicant asked the sentencing judge to take into account a further ten offences pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999.

4 The applicant was…

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 CBK

Details

AGLC: R v CBK [2002] NSWCCA 457
Case: [2002] NSWCCA 457
Decision Date: 15 November 2002

CaseChat Overview and Summary

In Regina v CBK, the applicant appealed against the severity of the sentences imposed upon him by the Sydney District Court. The applicant had pleaded guilty to three counts of supplying methylamphetamine, contrary to sections 25(1), 29 and 25A of the Drugs Misuse and Trafficking Act 1985. The applicant's appeal was based on four grounds: the sentences imposed were manifestly excessive; the learned sentencing judge failed to give an appropriate discount for the timing of the pleas of guilty; the learned sentencing judge failed to give an appropriate reduction of the non-parole period, having found special circumstances; and the learned sentencing judge failed to give adequate consideration to the effect that the applicant’s physical and psychological condition would pose for him while serving his sentences. The applicant also argued that his Honour erred in determining the level of objective criminality by reference to a finding that the applicant was not a street seller. The New South Wales Court of Criminal Appeal found that while the sentence imposed was severe, it was not outside the range of exercise of sound discretion. However, the Court found that the sentencing judge erred in failing to structure the sentence so as to give effect to the finding that he had made of special circumstances. The Court took into account material that was tendered on the hearing of the appeal, including affidavits, medical reports and psychiatric reports. The Court varied the non-parole period imposed on count 3 to two years, to date from 27 August 2003, such non-parole period to expire on 26 August 2005. The Court also confirmed the sentences imposed in the District Court.

Orders