Legal Research
Cases
R v Ceissman

R v Ceissman

Case [2001] NSWCCA 73 16 March 2001

Appeal

Sentencing

Criminal Law

Type to search within this case.

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Ceissman [2001] NSWCCA 73

FILE NUMBER(S):
60712/00

HEARING DATE(S): 16 March 2001

JUDGMENT DATE: 16/03/2001

PARTIES:
Regina
Scott Edward Ceissman

JUDGMENT OF: Ipp AJA Wood CJatCL Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0443

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

COUNSEL:
D.G. Staehli (Crown)(Applicant)
M. Williams QC with P. Dailly(Respondent)

SOLICITORS:
Commonwealth DPP
James A Hall Solicitors

CATCHWORDS:
CRIMINAL LAW - appeals - appeal against leniency of sentence - importation of trafficable quantity of cocaine - departure from sentencing guideline judgment - undue weight attached to subjective elements - failure to give effect to sentencing principles - sentence manifestly lenient

LEGISLATION CITED:
Crimes Act 1914 ss 16(2)(p), 16G, 19AC
Criminal Appeal Act 1912 s 5D
Customs Act 1901 s 233B(1)(d)

DECISION:
(1) Appeal allowed.
(2) Sentence quashed and respondent sentenced to four and a half years imprisonment with a non-parole period of two years and nine months.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60712 of 2000

IPP AJA
WOOD CJ at CL
SIMPSON J

16 March 2001

Regina v Ceissman

JUDGMENT

The respondent pleaded guilty to being knowingly concerned in the importation of a trafficable quantity of cocaine pursuant to s 233BC(1)(d) Customs Act 1901. He was sentenced to a term of imprisonment of three years with a non-parole period of eighteen months.

The Commonwealth Director of Public Prosecutions appealed under s 5D Criminal Appeal Act 1912 against the sentence imposed on the grounds that it was manifestly lenient and sought to correct an error in the formulation of the sentencing order.

Held: (Appeal allowed by majority of Wood CJ at CL and Ipp AJA. Simpson J in dissent):

1. Departure from Guideline Judgment without sufficient reasons or justification with regard to subjective facts
In departing from the range suggested as appropriate for a mid range trafficable quantity, the sentencing Judge observed that the decision in Wong & Leung was “merely to be used as a guideline”. This was to understate its effect as a considered pronouncement of the Court. It is true that guideline judgments are not meant to be applied rigidly or to lay down binding precedent from which there is never to be a departure,;however, they are intended to be indicative of the range of sentence that is regarded as appropriate following a considered examination by the Court of the authorities and of sentencing principle.

While a sentencing Judge does retain a discretion within the guidelines, including a discretion to depart from them if the particular circumstances of the case justify, the Court expects the reasoning for such a departure to be articulated with some precision and justified by reference to the subjective facts.

Jurisic (1998) 45 NSWLR 209; Chua (2001) NSWCCA 50 applied.

2. His Honour overstated the case
The sentencing Judge fell into error by the generalisation that the respondent was “at the very low end of the importation” without specifically considering what it was that he had…

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 Ceissman

Details

AGLC: R v Ceissman [2001] NSWCCA 73
Case: [2001] NSWCCA 73
Decision Date: 16 March 2001

CaseChat Overview and Summary

The appeal in R v Ceissman was heard by the Court of Appeal. The appellant, Ceissman, was convicted for the importation of a trafficable quantity of cocaine and appealed against the leniency of the sentence imposed. The primary legal issues before the court were whether the sentencing judge had departed from the relevant sentencing guideline judgment, whether undue weight was attached to subjective elements, and whether the sentence was manifestly lenient given the nature and circumstances of the offence.

The court found that the sentencing judge had indeed departed from the guideline judgment by not adequately considering the objective criteria and principles established in previous cases. The judge had placed undue emphasis on subjective factors, such as Ceissman's personal circumstances and the potential for rehabilitation, which were not sufficiently aligned with the severity of the offence. This departure resulted in a sentence that was manifestly lenient and not commensurate with the gravity of the crime. The court held that the sentencing principles had not been properly applied, leading to an outcome that did not reflect the seriousness of the importation of a trafficable quantity of cocaine.

Consequently, the appeal was allowed, and the sentence was quashed. The matter was remitted to the sentencing court for reconsideration in light of the court's findings. The court emphasised that future sentencing should adhere to established guidelines and principles, ensuring that the sentence reflects the objective seriousness of the offence.

Orders