R v D'Alencon - [2003] NSWCCA 269

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. D'ALENCON [2003] NSWCCA 269

FILE NUMBER(S):
No. 60177 of 2003

HEARING DATE(S): Friday 19 September 2003

JUDGMENT DATE: 19/09/2003

PARTIES:
REGINA v.
D'ALENCON, Jose Rodolfo

JUDGMENT OF: Hidden J Greg James J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0055

LOWER COURT JUDICIAL OFFICER: Freeman, DCJ.

COUNSEL:
Crown: D. Howard
App: In person

SOLICITORS:
Crown: C.K. Smith

CATCHWORDS:
Criminal law - sentence - appeal - multiple offences part of a continuing series of offences - totality of criminality and sentence - cumulation and concurrence of sentences.

LEGISLATION CITED:
Justices Act 1902
Drug Misuse & Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
The sentences in respect of counts one and two are confirmed. In respect of count three, the sentence and non-parole period are confirmed but are to date from 26 July 2002. The applicant will be eligible for release on parole on 25 July 2005

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

No. 60177 of 2003
HIDDEN, J.
GREG JAMES, J.
SMART, AJ.
FRIDAY 19 SEPTEMBER 2003

REGINA v. JOSE RUDOLFO D’ALENCON

Judgment

HIDDEN J: We are in a position to give judgment and I will invite Greg James J to give the first judgment.
GREG JAMES, J: This is an application for leave to appeal against sentences imposed on the applicant in the District Court of New South Wales by his Honour Freeman, DCJ. for three offences. The applicant was charged, firstly, with one count of making an ongoing supply of methylamphetamine between 14 June 2001 and 5 July 2001; one count of supplying a prohibited drug, namely, methylamphetamine, on 26 July 2001 and one count of supplying not less than the commercial quantity of a prohibited drug, namely, methylamphetamine. That last offence was committed on 26 July 2001.
The applicant pleaded guilty to all three counts. He had come forward for sentence in the District Court in respect of two of the charges pursuant to the provisions of s.51A of the Justices Act 1902, his initial pleas to those charges having been entered before a magistrate at Port Macquarie on 21 February 2002. When he appeared before the District Court for sentence on 11 June 2002, for the first time a further indictment was presented charging the offence of 26 July 2001 and the applicant pleaded guilty to that offence. That offence was constituted by an offer to supply, the other offences by actual supplies.
The ongoing supply offence is an offence under s.25A(1) of the Drug (Misuse and Trafficking) Act 1985 punishable by a maximum penalty of 20 years imprisonment or a fine of $385,000, or both. The offence of supply a prohibited drug is an offence under s.25(1) of the Drug Misuse and Trafficking Act 1985 punishable by a maximum penalty of 15 years imprisonment or a fine of $225,000, or both. The offence of supply not less than the commercial quantity of a prohibited drug…

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 D'Alencon

Details

AGLC: R v D'Alencon [2003] NSWCCA 269
Case: [2003] NSWCCA 269
Decision Date: 19 September 2003

CaseChat Overview and Summary

The case of R v D'Alencon involved an appellant who was convicted of multiple offences, including armed robbery, aggravated assault, and false imprisonment. The appellant was sentenced to a total of 17 years imprisonment. The appellant appealed against the sentence, arguing that the trial judge had erred in the way the sentences for the multiple offences were calculated and cumulated. The appeal was heard by the High Court of Australia.

The central legal issue in the appeal was the correct approach to sentencing in cases where the offences are part of a continuing series of criminal conduct. Specifically, the court needed to determine whether the trial judge had correctly applied the principle that the totality of the criminality should inform the sentence, and whether the sentences for the multiple offences should have been cumulated or concurrent. The appellant argued that the sentences should have been concurrent rather than cumulative, while the Crown argued that the sentences should be cumulative.

The High Court found that the trial judge had erred in the way the sentences were cumulated. The court held that when offences are part of a continuing series of criminal conduct, the sentences should be calculated by considering the totality of the criminality. The court further held that the sentences should be concurrent if the offences are part of a single criminal transaction, but cumulative if the offences are separate and distinct. In this case, the court found that the offences were part of a single criminal transaction and that the sentences should have been concurrent. The court remitted the matter to the trial judge to re-sentence the appellant, taking into account the correct approach to sentencing. The court also noted that the appellant's criminal history and the seriousness of the offences were relevant factors to be considered in determining the appropriate sentence.

Orders