R v Otto

Case [2005] NSWCCA 333 23 September 2005

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Reported Decision:
157 A Crim R 525

New South Wales

Court of Criminal Appeal

CITATION:
Regina v Otto [2005] NSWCCA 333
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 August 2005

JUDGMENT DATE:

23 September 2005

JUDGMENT OF:
Sully J at 1; Hidden J at 47; Hall J at 48

DECISION:
Decision by majority - Leave to appeal granted in respect of the offence against s.233B(1)(b) of the Customs Act (1901) (C'th); Sentence imposed in respect of that offence quashed; In lieu thereof, imprisonment for 10 years and 6 months commencing 24 May 2004 and expiring on 23 November 2014, with a non-parole period of 7 years, commencing 24 May 2004 and expiring on 23 May 2011; Earliest date for realease on parole - 23 May 2011

CATCHWORDS:
Criminal Law - Application for leave to appeal against sentence - importation of commercial quantity of cocaine - whether appropriate weight given to plea of guilty - examination of relevant principles - observations by Sully J about the approach to pleas of guilty in the light of the Thomson guidelines - whether sentence manifestly excessive - examination by Hall J of comparable cases.

LEGISLATION CITED:

Customs Act 1901 (C'th)
Passports Act 1938 (C'th)
Commonwealth Crimes Act 1914
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1914 (C'th)
Crimes Legislation Amendment (People Smuggling, Firearms, Trafficking and Other Measures) Act 2002

CASES CITED:
Regina v Ebsworth [2002] NSWCCA 465
Regina v Sutton [2004] NSWCCA 225
Regina v Johnson (1917) 17 SR (NSW) 481
Regina v Wong and Leung (1999) 48 NSWLR 340
Regina v Thomson and Houlton (2000) 49 NSWLR 483
CSR v Bouwhuis, Court of Appeal, unreported, 23 August 1991
Regina v Kalache [2000] NSWCCA 2
Regina v Markarian (2005) 79 ALJR 1048
Regina v Wong (1999) 48 NSWLR 340
Regina v Wong (2001) 207 CLR 584
Regina v Bernie (1998) 102 A Crim R 44
Regina v Castles [2005] NSWCCA 79
Regina v Bugeja (2001) NSWCCA 196
Regina v Speer [2004] NSWCCA 118
Regina v Mas Rivadavia [2004] NSWCCA 284
Regina v Studenikin (2004) 60 NSWLR 1
Regina v Dugeu (2004) 146 A Crim R 123
Regina v Bezan (2004) 147 A Crim R 430
Regina v Olbrich (1999) 199 CLR 179, 278
Regina v Gey-Houn Ra [2002] NSWCCA 251
Regina v Mascaro-Varillas [2002] NSWCCA 524
Regina v Cameron (2002) 209 CLR 339
Regina v Winchester (1992) 58 A Crim R
Regina v Bishop (Court of Appeal), unreported, 23 September 1996

PARTIES:
Regina
Phillip Otto

FILE NUMBER(S):
CCA 2005/924

COUNSEL:
L. K. Crowley - Crown (C'th)
P. Strickland - Applicant

SOLICITORS:
Commonwealth Director of Public Prosecutions - Crown
Legal Aid Commission - Applicant

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
04/11/0966

LOWER COURT JUDICIAL OFFICER:
Latham DCJ

2005/924

SULLY J
HIDDEN J
HALL J
23 September 2005

REGINA v Phillip OTTO

Judgment

SULLY J:

1 The applicant, Mr. Otto, pleaded guilty before a Local Court Magistrate to…

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 Otto

Details

AGLC: R v Otto [2005] NSWCCA 333
Case: [2005] NSWCCA 333
Decision Date: 23 September 2005

CaseChat Overview and Summary

In the case of R v Otto, the appellant was convicted of importing a commercial quantity of cocaine into Australia. The appeal centred on the sentence imposed by the trial judge, which Otto considered manifestly excessive. The High Court was tasked with determining whether the sentence was appropriate and whether the plea of guilty was adequately considered.

The legal issues before the court were twofold: first, whether the trial judge had given sufficient weight to the appellant's plea of guilty, and second, whether the sentence imposed was manifestly excessive. The court examined the principles established in Thomson v R and the approach to sentencing in light of such pleas. The court also reviewed comparable cases to assess the sentence's proportionality.

The court found that the trial judge had appropriately considered the plea of guilty in light of the established principles, noting the gravity of the offence and the appellant's role in the importation scheme. Regarding the sentence, the court held that it was not manifestly excessive, taking into account the appellant's culpability, the quantity of drugs involved, and the relevant sentencing precedents. The appeal was therefore dismissed.

No further orders were made by the court beyond the dismissal of the appeal. The sentence imposed by the trial judge was upheld as appropriate.

Orders