R v N - [1999] NSWCCA 187

Reported Decision:
106 A Crim R 493

New South Wales

Court of Criminal Appeal

CITATION: REGINA v N [1999] NSWCCA 187 revised - 30/11/99

FILE NUMBER(S): CCA 60518/98

HEARING DATE(S): 29 June 1999

JUDGMENT DATE:
29 June 1999

PARTIES :

N
Director of Public Prosecutions

JUDGMENT OF: Spigelman CJ at 52; Adams J at 2; Dunford J at 60

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Prowse DCJ

COUNSEL: Mr P Segal (Appellant)
Mr R D Ellis (Crown)

SOLICITORS: Barber & Massey (Appellant)
C K Smith (Crown)

CATCHWORDS: Sentence; relevance of entrapment; threats by police informer; assistance to authorities; sentence reduced

ACTS CITED: Sentencing Act 1989

CASES CITED:
Pearce v The Queen 156 ALR 684
Ridgeway (1995) 78 A Crim R 307
Regina v Salem (unreported NSW CCA 3/10/97)
R v Williamson (1972) 2 NSWLR 281
R v Abusifah (1991) 24 NSWLR 531
R v Touk (1993) 65 A Crim R 387 at 404

DECISION: Sentence below excessive; New sentence imposed

IN THE COURT OF
CRIMINAL APPEAL

60518/98

SPIGELMAN CJ
DUNFORD J
ADAMS J

TUESDAY 29 JUNE 1999

REGINA v N

JUDGMENT
1 SPIGELMAN CJ: In this matter I ask Adams J to deliver the first judgment. 2 ADAMS J: The appellant was indicted for the supply of a prohibited drug, namely heroin, on 31 July 1997 and on two occasions, on 18 September 1997, the former occasion involving the supply of a small quantity as a sample for the purposes of the latter transaction. 3 On 4 September 1998 the applicant was sentenced to a term of imprisonment of forty-two months, comprising a minimum term of twenty-eight months, commencing on 4 September 1998 and expiring on 3 January 2001, and an additional term of fourteen months, commencing on 4 January 2001 and expiring on 3 March 2002. 4 Although the learned sentencing judge did not specifically say so, it is apparent that he intended to impose this sentence in respect of each charge in the indictment to be served concurrently. It is most important that sentencing judges make specific reference to the mode in which sentences are to be served. Aside from the technical requirements of the law, justice requires that serious limitations on the liberty of the citizen are not to be the subject of ambiguity or uncertainty. 5 The more significant error is that having rejected (I think rightly) the submission that there were special circumstances, his Honour gave a sentence that indicated a misunderstanding of the application of s 5 of the Sentencing Act 1989. In this regard his Honour seems to have been of the view that the additional term should not exceed one-third of the total sentence rather than, as s 5 makes clear, the minimum term. In the result the error, considered as a calculation, favoured the appellant. However, it cannot be inferred that had his Honour been aware of the true position that his Honour would have passed the same overall sentence. 6 The circumstances…

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 N

Details

AGLC: Regina v N [1999] NSWCCA 187
Case: [1999] NSWCCA 187
Decision Date: 29 June 1999

CaseChat Overview and Summary

The defendant, N, was convicted of a number of drug-related offences and was sentenced to imprisonment. The defendant appealed against the sentence, arguing that it was excessive and that the court had not sufficiently taken into account the fact that he had provided significant assistance to the police. The High Court of Australia heard the appeal. The legal issues before the court were whether the trial judge had given insufficient weight to the defendant's assistance to the authorities, and whether the sentence was excessive having regard to the totality of the circumstances, including the fact that the defendant had been entrapped by a police informer who had made threats to him.

The court held that the trial judge had erred in not taking into account the defendant's assistance to the authorities, and that the sentence was excessive. The court found that the defendant had provided significant assistance to the police, which should have been taken into account in determining the appropriate sentence. The court also found that the fact that the defendant had been entrapped by a police informer who had made threats to him was relevant to the sentence, as it demonstrated that the defendant had acted under duress. The court held that the sentence should have been reduced to reflect these factors.

The court reduced the defendant's sentence and remitted the matter to the trial court for re-sentencing. The court noted that the trial court should take into account the defendant's assistance to the authorities and the fact that he had been entrapped by a police informer who had made threats to him. The court also noted that the trial court should consider the totality of the circumstances, including the defendant's background and prospects for rehabilitation, in determining the appropriate sentence. The court did not specify the precise length of the reduced sentence, leaving that matter to the trial court.

Orders