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R v Irusta

R v Irusta

Case [2000] NSWCCA 391 6 October 2000

Sentencing

Appeal

Jurisdiction

Unconscionable Conduct

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Reported Decision: [2000] 117 A Crim R 6

New South Wales

Court of Criminal Appeal

CITATION: R v Irusta [2000] NSWCCA 391 revised - 20/10/2000

FILE NUMBER(S): CCA 60275/00; 60226/00

HEARING DATE(S): 1 September 2000

JUDGMENT DATE:
6 October 2000

PARTIES :

Commonwealth Crown
State Crown
Sergio Daniel IRUSTA

JUDGMENT OF: Simpson J at 1; Dowd J at 69; Bell J at 70

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0640; 00/21/3021

LOWER COURT JUDICIAL
OFFICER : Goldring DCJ

COUNSEL : G J Bellew - Crown (Commonwealth)/Appellant
W G Dawe QC - Crown (State)/Respondent
R D McCrudden - (Respondent/Applicant

SOLICITORS: Director of Public Prosecutions (Commonwealth)
S E O'Connor

LEGISLATION CITED: Customs Act 1901
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Cartwright (1989) 17 NSWLR 243
R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340
R v Bougdis (1989) 41 A Crim R 125
R v Morrell (1984) 15 A Crim R 303
R v Morgan (1983) 70 A Crim R 368
R Taouk (1992) 65 A Crim R 387

DECISION: See paras 66 -68

IN THE COURT OF
CRIMINAL APPEAL

60275/00

60226/00
SIMPSON J

DOWD J

BELL J

6 October 2000

Revised 13 October 2000

REGINA v Sergio Daniel IRUSTA
REGINA v Sergio Daniel IRUSTA

Judgment

SIMPSON J :

1 On 14 April 2000 Sergio Irusta was sentenced by Judge Goldring in the District Court following his pleas of guilty to two charges. The first charge, brought under s 233B(1)(c) of the Customs Act 1901, was a charge of attempting to obtain not less than the commercial quantity of cocaine, and was prosecuted by the Director of Public Prosecutions for the Commonwealth. The second charge, brought under s 178BB of the Crimes Act 1900 (NSW), was a charge of knowingly making a false or misleading statement with intent to obtain a financial advantage, and was prosecuted by the Director of Public Prosecutions for the State of NSW.
2 The state charge carries a maximum penalty of imprisonment for five years. On this charge Judge Goldring sentenced Mr Irusta to a fixed term of imprisonment for nine months, to commence on 6 September 1999 and expire on 5 June 2000. The starting date of the sentence was fixed in order to take account of time spent by Mr Irusta in custody following his arrest on 6 September 1999.
3 By s 235(2)(c) of the Customs Act, persons convicted of an offence under s 233B involving the quantity of cocaine here relevant are liable to a maximum custodial penalty of life imprisonment. On this charge Judge Goldring imposed a sentence of imprisonment for six years and specified a non- parole period of four years. This sentence which he made cumulative upon the first, was specified to commence on 5 June 2000.
4 Mr Irusta seeks leave to appeal against the asserted severity of the sentence imposed on the state charge. The…

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 Irusta

Details

AGLC: R v Irusta [2000] NSWCCA 391
Case: [2000] NSWCCA 391
Decision Date: 6 October 2000

CaseChat Overview and Summary

The case of R v Irusta involved appeals against sentences imposed by Judge Goldring in the District Court. The respondent, Sergio Irusta, was sentenced to a cumulative term of imprisonment of seven and a half years, with a non-parole period of four years, for charges related to drug trafficking and making a false statement. The Commonwealth Director of Public Prosecutions (DPP) appealed against the leniency of the sentence, while Irusta sought leave to appeal against the severity of the sentence imposed on the state charge. The Court of Criminal Appeal considered several legal issues, including the sentencing of attempts versus completed offences, the application of guidelines set out in previous cases, and the consideration of remissions. The Court found that the sentencing judge had erred in several respects, including overstating the position that attempts are necessarily treated as less serious than completed offences, and incorrectly applying a reduction for the absence of remissions. The Court also found that the sentencing judge had erred in his interpretation of the evidence regarding the quantity of drugs attempted to be obtained and in his application of the sentencing guidelines. The Court quashed the original sentence and re-sentenced the respondent to a term of imprisonment of eight years, with a non-parole period of five years. The Court explained that the re-sentencing was based on the particular principles that apply to re-sentencing after a successful Crown appeal, and that the respondent was entitled to have imposed the minimum sentence that at first instance would have met the facts of the case.

Orders