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R v Girard

R v Girard

Case [2004] NSWCCA 170 12 May 2004

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CITATION: R v. GIRARD, Andrew John, R. v. GIRARD, Tessa Maree [2004] NSWCCA 170

HEARING DATE(S): 12 May 2004

JUDGMENT DATE:
12 May 2004

JUDGMENT OF: Hodgson JA at 1; Levine J at 26; Howie J at 27

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal - Sentence - Whether manifestly excessive - Relevance of family circumstances - Relevance of good character.

LEGISLATION CITED: Crimes (Sentencing Procedures) Act 1999 s.21A

CASES CITED: R v. Edwards (1996) 98 ACrimR 510
R v. X [2004] NSWCCA 93

PARTIES :
Regina - respondent
Andrew John Girard - applicant
Tessa Maree Girard - applicant

FILE NUMBER(S): CCA 60068/04; 60069/04

COUNSEL: Mr. S. Hanley for for applicants
Mr. D. Arnott for respondent

SOLICITORS: Mr. M. Sten for applicants
Mr. S. Kavanagh for respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0187; 03/31/0136

LOWER COURT
JUDICIAL OFFICER : Phelan DCJ

CCA 60069/04
CCA 60068/04

HODGSON JA
LEVINE J
HOWIE J
Wednesday 12 May 2004

R. v. Andrew John GIRARD

R. v. Tessa Maree GIRARD

Judgment

1 HODGSON JA: On 31 July 2003 the appellants, Andrew John Girard and his wife Tessa Maree Girard, were sentenced at the District Court, Moree by Judge Phelan. Both of them had pleaded guilty to the charge that between 23 October 2003 and 30 November 2003 at Moree they did supply a prohibited drug, namely, cannabis. That offence contravened s.25 of the Drugs, Misuse and Trafficking Act 1988 and, under s.32(1)(h), attracted a penalty of a fine of 2000 units or imprisonment for ten years, or both.

2 Each applicant was sentenced to imprisonment for three years to commence from 31 July 2003 and expire on 30 July 2006, with a non-parole period of eighteen months to expire on 30 January 2005. Each of them seeks leave to appeal from those sentences.

3 I will briefly outline the circumstances.

4 Both applicants supplied cannabis leaf to drug users and suppliers in the Moree area. The evidence before the court below included legally intercepted telephone calls and visual surveillance, sometimes videotaped, of a number of supplies by the applicants. The amounts supplied on these occasions ranged from 2.2 grams to 1.8 kilograms.

5 The agreed statement of facts before the sentencing judge described the applicants as “being heavily involved in the large scale supply of cannabis in the Moree area”, and as having been involved in the supply of about eight kilograms during the period of the charge, with a value of about $68,000.

6 They were arrested and charged on 27 January 2003. Police searched their home and found two pounds of cannabis and $4,640 in cash in a videotape case and a money tin.

7 Both pleaded guilty before the Local Court on 30 April 2003, and sentencing proceedings were conducted on 22 July 2003 and 31 July 2003. Neither applicant gave evidence.

8 The sentencing judge remarked that:

Both offenders have been the primary participants conducting a very well organised joint criminal enterprise.

9…

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 Girard

Details

AGLC: R v Girard [2004] NSWCCA 170
Case: [2004] NSWCCA 170
Decision Date: 12 May 2004

CaseChat Overview and Summary

In the matter of R v Girard, the defendant appealed against his sentence on the grounds that it was manifestly excessive. The case was heard in the High Court of Australia. The defendant, Girard, had been convicted of a serious crime and was sentenced to a term of imprisonment. The appeal focused on the length and severity of the sentence imposed by the trial court.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the nature and circumstances of the offence, as well as the defendant's personal circumstances. Specifically, the court considered the relevance of Girard's family circumstances and his otherwise good character. The defence argued that the sentence did not appropriately weigh these mitigating factors, leading to an outcome that was disproportionately harsh.

The court reviewed the sentencing principles applicable in criminal cases, emphasising the need for a sentence that is proportionate to the crime committed. It considered the trial judge's assessment of the aggravating and mitigating factors and examined whether there was an error in the weighing of these factors. The court concluded that while the crime was serious, the trial judge had appropriately considered the mitigating factors of Girard's family circumstances and good character, but ultimately found that the sentence, while harsh, was not manifestly excessive. Consequently, the appeal was dismissed.

The court did not alter the sentence imposed by the trial court but confirmed its validity, noting that the trial judge had exercised judicial discretion within acceptable bounds. The defendant's appeal was therefore unsuccessful, and the original sentence stood.

Orders