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R v Corbett

R v Corbett

Case [2008] NSWCCA 42 4 March 2008

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Reported Decision: 181 A Crim R 522

New South Wales

Court of Criminal Appeal

CITATION: R v Andrew Charles CORBETT [2008] NSWCCA 42

HEARING DATE(S): 28 September 2007

JUDGMENT DATE:
4 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Harrison J at 11

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Crown appeal - sentence imposed upon respondent in relation to two charges of attempting to import a border controlled drug, namely gammabutyrolactone, being a commercial quantity, contrary to ss 11.1(1) and 307.1 in Part 9.1 of the Criminal Code Act 1995 - maximum penalty of life imprisonment and/or a fine of $825,000 - plea of guilty - sentence on first count to 150 hours of community service and on second count to 360 hours of community service to be served concurrently – statutory regime distinguishing between drugs in prescribing the threshold trafficable and commercial quantities, but otherwise without distinction as to applicable maximum penalties - trial judge erred - no scope for judicial or forensic enquiry about individual characteristics of any of the listed substances except by reference to quantity - seriousness of an offence relating to a border controlled drug should be determined by reference to statutory provisions relating to it, rather than by some comparison with other border controlled drugs - sentences inadequate - harsh and unfair to subject respondent to more severe penalty even in circumstances where error is demonstrated - exercise of Court’s residual discretion not to interfere

LEGISLATION CITED: Criminal Appeal Act 1912
Criminal Code Act 1995
Customs Act 1901
Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005

CATEGORY: Principal judgment

CASES CITED: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295
House v The King [1936] HCA 40; (1936) 55 CLR 499
R v AA [2006] NSWCCA 55
R v Adams [2007] VSCA 37
R v Dang [2005] NSWCCA 430
R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
R v Hicks (1987) 45 SASR 270
R v Holder [1983] 3 NSWLR 245
R v Horne [1999] NSWCCA 391
R v Kyroglou [1999] NSWCCA 106
R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493
R v Pidoto [2006] VSCA 185; (2006) 14 VR 269
R v Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284
R v To [2007] NSWCCA 200
R v Wall [2002] NSWCCA 42
R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436
Wong & Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584

PARTIES: Regina (Appellant)
Andrew Charles Corbett (Respondent)

FILE NUMBER(S): CCA 3319/2007

COUNSEL: W J Abraham QC (Appellant)
P Byrne SC and S C Russell (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Appellant)
Bruce Stewart Dimarco Lawyers (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/1055

LOWER COURT JUDICIAL OFFICER: Bell DCJ

LOWER…

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 Corbett

Details

AGLC: R v Corbett [2008] NSWCCA 42
Case: [2008] NSWCCA 42
Decision Date: 4 March 2008

CaseChat Overview and Summary

The respondents in this case were charged with two counts of attempting to import a border controlled drug, gammabutyrolactone, in a commercial quantity. The respondents pleaded guilty and were sentenced to 150 hours of community service for the first count and 360 hours for the second count, to be served concurrently. The Crown appealed the sentence, arguing that it was inadequate. The appeal was heard in the High Court of Australia. The central issue before the court was whether the sentences imposed on the respondents were appropriate given the severity of the offence and the statutory maximum penalties available.

The court considered whether the trial judge had erred in his approach to sentencing by comparing the seriousness of the offence to other border controlled drugs. The court held that the statutory regime did not allow for such comparisons, as the seriousness of an offence relating to a border controlled drug should be determined by reference to the statutory provisions relating to it, rather than by comparison with other border controlled drugs. The court also held that the trial judge had not given sufficient weight to the maximum penalties available, which were severe, and that the sentences imposed were inadequate. The court found that it was harsh and unfair to subject the respondents to a more severe penalty, even in circumstances where an error had been demonstrated.

The court exercised its residual discretion and did not interfere with the sentences imposed by the trial judge. The court held that the sentences were not manifestly inadequate and that the trial judge had considered the appropriate factors in arriving at the sentences. The court did not consider it necessary to substitute its own sentences for those of the trial judge. The appeal was dismissed, and the sentences imposed by the trial judge remained in place.

Orders