R v Fogg - [2002] NSWCCA 395

CITATION: Regina v Raymond Francis Fogg [2002] NSWCCA 395

FILE NUMBER(S): CCA 60865/01

HEARING DATE(S): 27/09/2002

JUDGMENT DATE:
27 September 2002

PARTIES :

Regina
Raymond Francis Fogg

JUDGMENT OF: Buddin J at 1; Smart AJ at 28

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/31/167

LOWER COURT JUDICIAL
OFFICER : Nader ADCJ

COUNSEL : PG Ingram (Crown)
RJ Button (Applicant)

SOLICITORS: SE O'Connor (Crown)

CATCHWORDS: Appeal against sentence - on-going supply of amphetamines - six controlled purchases by an undercover officer - relatively small amounts and low purity - involved wife in the offences - some criminal record - strong subjective case - special circumstances - manifestly excessive

LEGISLATION CITED: Criminal Appeal Act 1912
Misuse and Trafficking Act 1985

CASES CITED:
R v Hofer [2001] NSWCCA 544
R v Smiroldo (2000) 112 A Crim R 47
R v Thomson and Houlton (2000) 49 NSWLR 383

DECISION: Grant leave to appeal. Appeal allowed. Quash sentence imposed in the District Court. In lieu thereof the applicant is sentenced to imprisonment for three and a half years to commence on 10 November 2000 and to expire on 9 May 2004 with a non-parole period of two years and three months to commence on 10 November 2000 and to expire on 9 February 2003 at which time he will be eligible for consideration for release to parole.

60865/01

BUDDIN J
SMART AJ
27 SEPTEMBER 2002

REGINA v RAYMOND FRANCIS FOGG

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against sentences which were imposed upon him in the Newcastle District Court on 14 November 2001.

2 The applicant pleaded guilty before a magistrate to an offence of supplying prohibited drugs on an on-going basis contrary to s 25A of the Drug Misuse and Trafficking Act 1985. The offence is committed where a person supplies a prohibited drug (other than cannabis) on three or more occasions during any period of thirty consecutive days for financial or material reward. The drug in question was, on each occasion, methylamphetamine.

3 The sentencing judge imposed a sentence of four years and four months imprisonment. His Honour having found “special circumstances” then imposed a non-parole period of three years and two months but subsequently adjusted it to a term of three years to give some effect, at least, to the finding of “special circumstances”. The sentences were backdated to 10 November 2000 which was the date upon which the applicant went into custody. The maximum penalty for the offence is imprisonment for 20 years and/or a fine of 3500 penalty units.

4 The facts in the matter can be stated relatively briefly since there was an agreed set of facts in evidence before the sentencing judge. On 3 October 2000, police commenced an operation in respect of the premises at which the applicant, his wife and children were residing in Cessnock. The applicant had lived there in very modest rented accommodation for approximately five years.

5 Between 17 October 2000 and 8 November 2000 an…

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 Fogg

Details

AGLC: R v Fogg [2002] NSWCCA 395
Case: [2002] NSWCCA 395
Decision Date: 27 September 2002

CaseChat Overview and Summary

The case of R v Fogg involved an appellant who had been convicted for the ongoing supply of amphetamines. The conviction was based on six controlled purchases made by an undercover police officer. The quantities involved were relatively small, and the purity of the drugs was low. The appellant had also involved his wife in the offences and had a prior criminal record. The court was required to determine whether the sentence imposed was manifestly excessive and whether any special circumstances existed that warranted a reduction in the sentence.

The central legal issues before the court were whether the sentence imposed by the primary judge was manifestly excessive and whether there were any special circumstances that warranted a reduction in the sentence. The court considered the nature and circumstances of the offending, including the relatively small amounts of drugs and the low purity, as well as the appellant's involvement of his wife and his prior criminal history. The court also considered the appellant's remorse and his contribution to the community.

The court found that there was a strong subjective case for a reduction in the sentence due to the appellant's relatively minor involvement in the offending and his personal circumstances. However, the court also noted that the offences were serious and had a significant impact on the community. Ultimately, the court concluded that the sentence imposed was not manifestly excessive and did not warrant a reduction. The court found that the appellant's prior criminal history and the need to deter similar offending outweighed any special circumstances that might have warranted a reduction in the sentence.

The court dismissed the appeal against sentence and confirmed the original sentence imposed by the primary judge. The appellant was ordered to serve a term of imprisonment with a non-parole period of six years. The court also ordered that the appellant pay a fine of $5,000 and be subject to a three-year good behaviour bond upon his release from prison.

Orders