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R v Hofer

R v Hofer

Case [2001] NSWCCA 544 14 December 2001

Appeal

Sentencing

Double Jeopardy

Error on the Face of the Record

Criminal Law

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CITATION: R v Hofer [2001] NSWCCA 544

FILE NUMBER(S): CCA 60421/2001

HEARING DATE(S): 14 December 2001

JUDGMENT DATE:
14 December 2001

PARTIES :

Regina
Rudolph Hofer

JUDGMENT OF: Wood CJ at CL at 1, 39; Sperling J at 38

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/31/0084

LOWER COURT JUDICIAL
OFFICER : Coolahan DCJ

COUNSEL : G E Smith
PJD Hamill

SOLICITORS: S E O'Connor
D J Humphreys

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - supply of methylamphetamine - possession of cannabis - earlier offence inappropriately taken into account during sentence - double jeopardy principle - error on the face of the record - Use of Judicial Commission Statistics for comparison with like offences - existing sentence excessive to a small degree only.

LEGISLATION CITED: Criminal Appeal Act 1912, s 6(3)
Drug Misuse and Trafficking Act 1985, s 25A

CASES CITED:
Regina v Bacon (2000) NSWCCA 549
Regina v Barton (2001) NSWCCA 63
Regina v Bloomfield NSWCCA 15 July 1998)
Regina v Carter (2000) NSWCCA 490
Regina v Daridis NSWCCA 18 December 1986
Regina v De Simoni (1981) 147 CLR 383
R v Groat (2001) NSWCCA 452
Regina v Hayes (2001) NSWCCA 410
Regina v Hoon and Pouoa (2000) NSWCCA 137
Regina v Huang and Lin (2001) NSWCCA 76
Regina v Khaled (2001) NSWCCA 169
Regina v McMahon NSWCCA 4 April 1986
Regina v Nuth (2001) NSWCCA 318
R v Ryan (2001) 75 ALJR 815 at para 67
Regina v Smiroldo (2000) NSWCCA 120
Regina v Tannous NSWCCA 18 June 1997
Regina v Thompson (2000) NSWCCA 362
Regina v Tipler (2000) NSWCCA 382
Regina v Tran (1990) NSWCCA 109

DECISION: Leave to appeal granted. Appeal allowed. Sentence below quashed. New sentence of 4 years imprisonment, commencing 9 November 2000 and expiring on 8 November 2004.

- 1 -IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60421/01

Friday 14 December 2001

Regina v Rudolf Hofer

Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal against the sentence imposed upon him by Coolahan DCJ at the Newcastle District Court on 6 June 2001. The sentence which was imposed, for an offence of supplying methylamphetamine on an ongoing basis, contrary to s 25A of the Drug Misuse and Trafficking Act 1985, taking into account, on a Form 1, a charge of possession of sixty-two grams of cannabis, was one of imprisonment for five years, with a non-parole period of three years.

2 The applicant submitted that his Honour erred in two respects. First, it was put that he misdirected himself as a matter of law when observing that the applicant:

"does not have a lengthy criminal history but of significance is a conviction in 1994 for supply of a prohibited drug for which he was sentenced to three years' imprisonment to be served by way of periodic detention. In my view not only does his record not assist him because of that matter, but…

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 Hofer

Details

AGLC: R v Hofer [2001] NSWCCA 544
Case: [2001] NSWCCA 544
Decision Date: 14 December 2001

CaseChat Overview and Summary

The case of R v Hofer involved the appellant, who was convicted of supplying methylamphetamine and possessing cannabis. The dispute centred on the severity of the sentence imposed by the lower court. The appeal was heard in the higher court. The appellant argued that the lower court had inappropriately taken into account an earlier offence during the sentencing process, and that the sentence was excessive.

The legal issues before the court were whether the lower court erred in considering the earlier offence and whether the sentence was excessive. The court needed to determine if the error was material and whether the sentence imposed was appropriate. The court also needed to consider if the use of Judicial Commission statistics for comparison with similar offences was permissible and if the sentence imposed was excessive to a degree that warranted reduction.

The court found that the lower court had indeed erred in taking into account the earlier offence, which was a breach of the double jeopardy principle. However, the court determined that the error was not material as it did not influence the overall sentence imposed. The court also found that the sentence imposed was excessive to a small degree only, and that the use of Judicial Commission statistics was permissible for comparison with similar offences. The court reduced the sentence by a small degree, considering the overall circumstances of the case.

The final orders of the court were that the conviction was upheld, but the sentence was reduced by a small degree. The appellant's appeal against the severity of the sentence was partially successful, with the court reducing the sentence imposed by a small degree. The court's decision provides guidance on the appropriate use of earlier offences in sentencing and the permissible use of Judicial Commission statistics for comparison with similar offences.

Orders