Legal Research
Cases
R v Colledge

R v Colledge

Case [2010] NSWCCA 302 10 December 2010

No judgment structure available for this case.

Type to search within this case.

New South Wales
Court of Criminal Appeal

CITATION: R v COLLEDGE [2010] NSWCCA 302

HEARING DATE(S): 4 August 2010

JUDGMENT DATE:
10 December 2010

JUDGMENT OF: Macfarlan JA at 1; Hulme J at 2; McCallum J at 29

DECISION: (i) Appeal allowed;
(ii) Quash the sentence imposed by Hosking DCJ on 20 April 2010;
(iii) Order that the Respondent pay a fine of $3,000; and
(iv) Allow the Respondent 3 months to pay.

PARTIES: Regina
Paul COLLEDGE

FILE NUMBER(S): CCA 2009/278535

COUNSEL: Applicant: Mr W Roser QC
Respondent: Ms S Walsh

SOLICITORS: Applicant: Commonwealth DPP
Respondent: Viney Williams Lawyers

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

- 10 -

2009/278535

MACFARLAN JA
RS HULME J
McCALLUM J

Friday, 10 December 2010

REGINA v PAUL COLLEDGE

Judgment

1 MACFARLAN JA: I agree with RS Hulme J.

2 RS HULME J: This is a Crown appeal against a sentence imposed by Hosking DCJ on the Respondent in respect of a charge that the Respondent imported a commercial quantity of a border controlled drug, viz gamma-butyrolactone, commonly and hereafter referred to as “GBL”. The quantity involved was 2060 grams, the minimum commercial quantity being 1 kilogram. The Respondent pleaded guilty to the offence at the first reasonable opportunity. The sentence imposed was a fine of $500.

3 The statutory provision against which the Respondent offended was s 307.1 of the Criminal Code Act 1995 (Cth). That provision and an ancillary one necessary to appreciate its operation are as follows:-

307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(3) Absolute liability applies to paragraph (1)(c).

5.4 Recklessness

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) …

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

4 The Respondent’s plea to the charge carries with it as a necessary implication that he was at least reckless as to whether or not the GBL was a border controlled drug, in other words that he was aware of a substantial risk that that was so and, having regard to the circumstances known to him, it was unjustifiable to take the risk.

5 The Respondent came to the attention of the authorities when an international mail parcel containing the drug 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 Colledge

Details

AGLC: R v Colledge [2010] NSWCCA 302
Case: [2010] NSWCCA 302
Decision Date: 10 December 2010

CaseChat Overview and Summary

In the case of Regina v Paul Colledge, the Court of Criminal Appeal of New South Wales reviewed a sentencing decision made by Hosking DCJ in the District Court. The Respondent, Paul Colledge, had pleaded guilty to importing a commercial quantity of a border controlled drug, gamma-butyrolactone (GBL), which weighed 2060 grams. The statutory offence was under s 307.1 of the Criminal Code Act 1995 (Cth), which prescribes severe penalties for importing commercial quantities of border controlled drugs. Despite the gravity of the offence, Hosking DCJ imposed a fine of $500, considering it inappropriate to impose a custodial sentence given the Respondent's background and the nature of his offending.

The legal issues before the Court of Criminal Appeal were whether the sentence imposed was appropriate under the relevant statutory provisions and sentencing principles. The Crown argued that the sentence was manifestly inadequate and failed to appropriately reflect the seriousness of the offence, as well as its potential deterrent effect. The appeal centred on whether the District Court correctly exercised its discretion in determining the appropriate penalty and whether the sentence imposed was of a severity appropriate in all the circumstances of the offence.

The Court of Criminal Appeal found that while the District Court had appropriately considered several mitigating factors, it had not sufficiently weighed the objective seriousness of the offence and the need for deterrence. The Court noted that the statutory requirement to impose a sentence of a severity appropriate in all circumstances of the offence meant that all relevant factors, including the nature and circumstances of the offence, must be taken into account. The appeal was allowed, and the original sentence was quashed. The Court ordered that the Respondent pay a fine of $3,000 and allowed him three months to pay the fine.

Orders