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R v Grbin

R v Grbin

Case [2004] NSWCCA 220 29 June 2004

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CITATION: Regina v Robert Brian Grbin [2004] NSWCCA 220 revised - 2/07/2004

HEARING DATE(S): 29 June 2004

JUDGMENT DATE:
29 June 2004

JUDGMENT OF: Levine J at 39, 41; Dunford J at 1; Howie J at 40

DECISION: Appeal allowed - non-parole period varied

CATCHWORDS: Criminal Law - Sentencing - on-going supply of amphetamines - guilty plea - utilitarian value - not related to strength of Crown case - need to specify discount allowed - special circumstances - desirability of expressing findings thereon - care and supervision of disabled child.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 44
Drug Misuse and Trafficking Act 1985 s 25

CASES CITED: R v Bednarz [2000] NSWCCA 533
R v Brindley (1993) 66 A Crim R 204
R v Edwards (1996) 90 A Crim R 510
R v Maslen (1995) 79 A Crim R 199
R v Simpson (2001) 53 NSWLR 704
R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383
R v Way [2004] NSWCCA 131

PARTIES :
Regina v Robert Brian Grbin

FILE NUMBER(S): CCA 60097/04

COUNSEL: D Arnott - Crown
P Hamill - Applicant

SOLICITORS: S Kavanagh - Crown
Legal Aid Commission - Appllicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3097

LOWER COURT
JUDICIAL OFFICER : Maguire DCJ

- 9 -

60097/04

LEVINE J
DUNFORD J
HOWIE J

REGINA v ROBERT BRIAN GRBIN

Judgment

1 DUNFORD J: This is an application for leave to appeal by Robert Brian Grbin against the sentence imposed on him by his Honour Judge B R Maguire QC in the District Court at Campbelltown following his plea of guilty to one count of ongoing supply of methylamphetamine contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985, which offence carries a maximum penalty of 20 years imprisonment and/or a fine of $385,000.

2 After taking into account a number of matters on a Form 1, his Honour sentenced the applicant to imprisonment for two years and eight months and fixed a non-parole period of two years.

3 The further offences taken into account on the Form 1 were deemed supply of ecstasy, possession of methylamphetamine for the purpose of supply, deemed supply of methylamphetamine, deemed supply of ecstasy and unlawful possession of testosterone steroid tablets.

4 The applicant performed security duties at the entrance gate to Holsworthy Army Barracks. I note that he was a security guard and not a member of the Armed Forces.

5 On the late afternoon of Friday 29 November 2002, an undercover police officer using the name of “Sean” passed through the security gates staffed by the applicant and another security officer. Sean took the applicant aside and indicated he wanted to buy some “whizza”. After the applicant had satisfied himself there was nothing untoward, he led Sean to a nearby car from which he took two small resealable plastic bags containing 1.19 grams of methylamphetamine which he handed to Sean in exchange for $80. Before parting and…

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 Grbin

Details

AGLC: R v Grbin [2004] NSWCCA 220
Case: [2004] NSWCCA 220
Decision Date: 29 June 2004

CaseChat Overview and Summary

The case of R v Grbin involved the appellant who was convicted of multiple counts of supplying amphetamines. The appellant entered a guilty plea, which resulted in a discount to his sentence. The Crown sought an appeal on the grounds that the primary judge had failed to specify the discount allowed for the guilty plea, and whether any special circumstances existed that warranted a further reduction in sentence. The appeal was heard by the court, which had to determine the appropriate discount for the guilty plea and whether any special circumstances existed that warranted a further reduction in the sentence.

The court examined the relevant sentencing principles and case law to determine the appropriate discount for the guilty plea. The court found that while the discount for a guilty plea was not directly related to the strength of the Crown's case, it was necessary for the primary judge to specify the discount allowed. The court also considered the special circumstances of the case, including the care and supervision of the appellant's disabled child, and found that these circumstances warranted a further reduction in the sentence.

The court concluded that the primary judge had failed to specify the discount allowed for the guilty plea and had not adequately considered the special circumstances of the case. The court remitted the matter to the primary judge to reconsider the sentence, specifying the discount allowed for the guilty plea and giving proper consideration to the special circumstances of the case.

The final orders of the court were that the appeal be allowed, the conviction be quashed, and the matter be remitted to the primary judge for resentencing. The court emphasised the importance of specifying the discount allowed for a guilty plea and properly considering any special circumstances that may warrant a further reduction in the sentence.

Orders