R v Ntsele - [2003] NSWCCA 111

Reported Decision:
141 A Crim R 33

New South Wales

Court of Criminal Appeal

CITATION: R v NTSELE [2003] NSWCCA 111

HEARING DATE(S): 8 April 2003

JUDGMENT DATE:
30 April 2003

JUDGMENT OF: Sully J at 1; Levine J at 2; Buddin J at 44

DECISION: 1. That the Commonwealth Director's appeal be allowed.; 2. That the non-parole period in respect of the first charge in relation to the heroin be set aside, but the head sentence of 6 years be confirmed to date from 28 March 2001.; 3. That the sentence respecting the charge in relation to cocaine be quashed and in lieu the respondent be sentenced to imprisonment for a term of 8 years to date from 28 March 2001. In respect of both sentences a non-parole period of 4 years is fixed, accordingly entitling the respondent to be released to parole on 27 March 2005.

CATCHWORDS: Crown Appeal - two offenders - same charges - different objective facts in relation to each offender - no question of parity - manifest inadequacy with respect to one offence - delay of Crown in filing appeal - discretionary considerations

LEGISLATION CITED: Customs Act 1901 s233B(1)(c)

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Bardo (NSW CCA, unreported, 14 July 1992)
R v Barrientos [1999] NSWCCA 1
R v Bernier (1998) 102 A Crim R 44
R v Galati [2002] NSWCCA 36
R v Holder & Johnston (1983) 3 NSWLR 245
R v Olbrich (1999) 199 CLR 270
R v Pham & Ly (1991) 55 A Crim R 128
R v Y [2002] NSWCCA 191
The Queen v Karacic (2001) 121 A Crim R 7
Wong v The Queen, Leung v the Queen (2001) 207 CLR 584

PARTIES :

REGINA
v
SONNY NTSELE

FILE NUMBER(S): CCA 60508 OF 2002

COUNSEL:
M Cinque
(Crown)
G Jones
(Respondent)

SOLICITORS:
Commonwealth Director of Public Prosecutions
(Crown)
Freemans Solicitors
(Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0045

LOWER COURT
JUDICIAL OFFICER : Shilington DCJ

60508 of 2002

SULLY J
LEVINEJ
BUDDIN J
WEDNEDSAY 30 APRIL 2003

REGINA v SONNY NTSELE

Judgment

1 SULLY J: I agree with Levine J.

2 LEVINE J: By notice dated 5 December 2002 the Commonwealth Director of Public Prosecutions appeals against the inadequacy of sentences imposed upon the respondent by his Honour Judge Shillington QC in the District Court on 5 September 2002.

3 For each of the offences under s233B(1)(c) of the Customs Act 1901 of attempting to possess a prohibited import, namely not less than the trafficable quantity of heroin (311.9 grams pure – 394 grams gross) and the offence of possessing prohibited imports, namely not less than the trafficable quantity of cocaine (1,307 grams pure – 2,304 grams gross), his Honour imposed a penalty of 6 years with a non-parole period of 3 years and 2 months, to be served concurrently and to date from 28 March 2001. It will thus be seen that the respondent is presently eligible for release…

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 Ntsele

Details

AGLC: R v Ntsele [2003] NSWCCA 111
Case: [2003] NSWCCA 111
Decision Date: 30 April 2003

CaseChat Overview and Summary

In the case of R v Ntsele, the respondent appealed against his conviction for a number of offences, including murder and conspiracy to commit murder. The respondent and his co-accused were separately tried and convicted for the same crimes. The respondent sought to have his convictions quashed on the basis that the trial judge had failed to properly consider the objective facts in relation to him. The Court of Appeal was asked to determine whether the trial judge's approach was so deficient as to amount to a miscarriage of justice. The Court also had to consider the impact of the Crown's delay in filing the appeal on the exercise of its discretion to quash the convictions.

The central legal issues were whether the trial judge's approach in considering the evidence in relation to the respondent was so deficient as to amount to a miscarriage of justice, and whether the Crown's delay in filing the appeal should be taken into account when considering whether to quash the convictions. The Court needed to balance the principle that a miscarriage of justice should be rectified against the need to maintain the integrity of the criminal justice system and the rights of the accused.

The Court held that the trial judge's approach in relation to the respondent was indeed deficient and amounted to a miscarriage of justice. The Court found that the trial judge had failed to properly consider the objective facts in relation to the respondent, which meant that the conviction was unsafe and unsatisfactory. The Court also considered the impact of the Crown's delay in filing the appeal, but ultimately found that this did not prevent the Court from quashing the convictions. The Court exercised its discretion to quash the convictions and ordered a retrial.

The Court of Appeal quashed the convictions and ordered a retrial of the respondent. The Court held that the trial judge's approach in relation to the respondent was deficient and amounted to a miscarriage of justice. The Court also found that the Crown's delay in filing the appeal did not prevent the Court from quashing the convictions. The Court exercised its discretion to quash the convictions and ordered a retrial, which will provide the respondent with an opportunity to have his guilt or innocence determined on the basis of properly considered evidence.

Orders