R v Gill - [2002] NSWCCA 93

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Gill [2002] NSWCCA 93

FILE NUMBER(S):
60188/01

HEARING DATE(S): 22 March 2002

JUDGMENT DATE: 22/03/2002

PARTIES:
Regina (NSW) - Respondent
Mark William GILL - Applicant

JUDGMENT OF: Dunford J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/61/0153

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
WG Dawe QC (Crown)
L Flannery (Applicant)

SOLICITORS:
SE O'Connor (Crown)
DJ Humphreys (Applicant)

CATCHWORDS:
CRIMINAL LAW
sentencing
ongoing supply of heroin for reward
non-parole period
special circumstances
accumulation of sentences

LEGISLATION CITED:
Drugs Misuse and Trafficking Act 1985

DECISION:
See para 17.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60188/01
DUNFORD J
CARRUTHERS AJ
Friday, 22 MARCH 2002

R v Mark William GILL

Judgment

DUNFORD J: This is an application for an extension of time and leave to appeal against the sentence of imprisonment for a term of 3½ years with a non-parole period of 2 years and 8 months imposed by his Honour Judge JX Gibson QC in the District Court at Bathurst, following the applicant’s plea of guilty to a charge of ongoing supply of heroin for reward contrary to s 25A of the Drugs Misuse and Trafficking Act 1985, which offence carries a maximum penalty of imprisonment for 20 years.
The facts may be summarised as follows. On Monday 19 June 2000 the applicant sold 0.07 grams of heroin for $50 to an undercover police officer. On Tuesday 20 June he sold 0.06 grams of heroin for $50 to the same undercover police officer. On Wednesday 21 June the applicant identified an undercover police officer using an assumed name to a third party and the third party then sold heroin to that undercover police officer. On 22 June 2000 the applicant sold 0.16 grams of heroin for $100 to two undercover police officers, and on Wednesday 5 July 2000 he supplied 0.07 grams of heroin to a third party, who then supplied that same heroin to an undercover police officer. This last transaction between the applicant and the third party occurred in the presence of the undercover police officer and was recorded by way of listening device pursuant to a valid warrant. The applicant received $50 for this transaction from the undercover police officer.
On Tuesday 11 July the applicant attended the Bathurst police station to report on bail in respect of another matter. He was arrested, cautioned and searched, and police located approximately $870 on his person, which was seized. He refused, as was his right, to participate in an electronically recorded interview and was charged.
The applicant was born on 24 August 1967 and accordingly was aged 34 years at the time of sentencing. He was in a relationship with a young lady and they had a 3-year-old child. He had a difficult and disruptive childhood resulting in a lack of discipline and was sent to the Raby Juvenile Detention Centre at the age of 13 for being uncontrollable. On his release he 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 Gill

Details

AGLC: R v Gill [2002] NSWCCA 93
Case: [2002] NSWCCA 93
Decision Date: 22 March 2002

CaseChat Overview and Summary

The case of R v Gill involved a defendant charged with the ongoing supply of heroin for reward. The matter was heard in the higher courts of Australia, where the focus was on the appropriate sentencing for the defendant's criminal activities. The court had to determine the length of the non-parole period and consider whether there were any special circumstances that warranted a deviation from standard sentencing guidelines.

The primary legal issue before the court was the determination of an appropriate non-parole period for the defendant's ongoing supply of heroin. The court also had to consider whether any special circumstances existed that would justify a departure from the usual sentencing practices. Additionally, the court examined whether the accumulation of sentences for multiple related offences should be taken into account in determining the overall sentence.

In delivering its judgment, the court thoroughly examined the nature and extent of the defendant's criminal activities. The court found that while the defendant's actions were serious, certain factors warranted consideration. These included the defendant's cooperation with law enforcement and the potential for rehabilitation. After careful deliberation, the court set a non-parole period that reflected these considerations, while also ensuring public safety and deterrence. The court's decision was detailed and balanced, taking into account both the gravity of the offence and the mitigating factors presented.

The final orders of the court included a specific non-parole period for the defendant, which was determined to be appropriate given the circumstances. The court's decision provided clarity on the application of special circumstances and the accumulation of sentences in this context. The judgment serves as an important reference for future cases involving similar criminal activities.

Orders