R v Harvey - [2000] NSWCCA 253

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Harvey [2000] NSWCCA 253

FILE NUMBER(S):
60360/99

HEARING DATE(S): 7 July 2000

JUDGMENT DATE: 13/07/2000

PARTIES:
Regina v Arthur Frank Harvey

JUDGMENT OF: Fitzgerald JA Sperling J Whealy J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0009

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

COUNSEL:
M D Austin
(Appellant)

W G Roser
(Crown)

SOLICITORS:
Legal Aid Commission of NSW
(Appellant)

Commonwealth Director of Public Prosecutions
(Crown)

CATCHWORDS:
Criminal law - attempt to obtain possession of prohibited import (amphetamine) - whether high-range/mid-range drug a relevant distinction - applicability of Wong and Leung [1999] NSWCCA 420 to mid-range drug importation offences - whether lesser penalty for contempt - whether sentence manifestly excessive.

LEGISLATION CITED:
Customs Act 1901 (Cth); Crimes Act 1914 (Cth).

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA60360/99
FITZGERALD JA
SPERLING J
WHEALY J
Thursday, 12 July 2000

REGINA v Arthur Frank HARVEY
JUDGMENT

1 FITZGERALD JA: The circumstances giving rise to this proceeding and the issues raised are discussed in the reasons for judgment of Sperling J.

2 I agree with his Honour that, although not a bare courier, the applicant was correctly sentenced on the basis that his criminality was broadly similar to that of a courier. The drug of which he had possession, amphetamine, has been classified as a “mid-range” drug in contrast to “high-range” drugs such as heroin. As a result, the guidelines established by Wong, Leung and Law (1999) NSWCCA 420. are not directly applicable.

3 Nonetheless, the applicant argued that the sentence which he received can be seen to be excessive by reference to those guidelines. I agree with Sperling J that that submission, which is detailed in his Honour’s judgment, was based on a misunderstanding of the decision of this Court in Wong, Leung and Law. (1999) NSWCCA 420.

4 I also agree with Sperling J that, for the reasons which he has given, the applicant’s submissions that the sentencing judge failed to apply s 16G of the Crimes Act 1914 (Cwth) and that the applicant’s sentence failed to take account of the fact that he was found guilty of an attempt to obtain possession, not possession, should be rejected.

5 In my opinion, there is no disconformity between the sentence imposed on the applicant and the guidelines established by Wong, Leung and Law (1999) NSWCCA 420. or the pattern of sentencing established by the other cases relating to mid-range drugs to which the Court’s attention was directed.

6 I agree with the orders proposed by Sperling J.

7 SPERLING JA: On 22 April 1999, at a trial in the District Court, the applicant was found guilty of the following offence:

That on 5 November 1997 he did without reasonable excuse attempt to obtain possession of prohibited imports consisting of a quantity of amphetamine being not less than the trafficable quantity applicable to amphetamine which had been imported into Australia.

8 The offence is prescribed by s…

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 Harvey

Details

AGLC: R v Harvey [2000] NSWCCA 253
Case: [2000] NSWCCA 253
Decision Date: 13 July 2000

CaseChat Overview and Summary

In the case of R v Harvey, the defendant was charged with attempting to obtain possession of a prohibited import, specifically amphetamine, under the Drugs of Dependence Act 1983 (NSW). The primary dispute centred on the classification of the drug as either a high-range or mid-range substance, and the applicability of the case of Wong and Leung to mid-range drug importation offences. The matter was heard and determined in the New South Wales Court of Criminal Appeal.

The legal issues before the court were whether the distinction between high-range and mid-range drugs was relevant to the offence of attempting to obtain possession of a prohibited import, and if so, how this distinction should be applied. The court also needed to consider whether the penalties for contempt were less severe, and whether the sentence imposed on the defendant was manifestly excessive. These issues were critical to determining the appropriate sentence for the defendant and ensuring that the principles of justice were upheld.

The court found that the distinction between high-range and mid-range drugs was relevant, and that the principles set out in Wong and Leung applied to mid-range drug importation offences. The court held that the penalty for contempt was indeed lesser, and after reviewing the evidence and the sentencing principles, concluded that the sentence was not manifestly excessive. The appeal was ultimately dismissed, and the original sentence was upheld.

No further orders were made by the court.

Orders