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R v Paliwala

R v Paliwala

Case [2005] NSWCCA 221 9 June 2005

Criminal Liability

Sentencing

Criminal Law

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Reported Decision:
153 A Crim R 451

New South Wales

Court of Criminal Appeal

CITATION:
Regina v Paliwala [2005] NSWCCA 221

HEARING DATE(S): 9/06/05

JUDGMENT DATE:

9 June 2005

JUDGMENT OF:
Studdert J at 49; James J at 2; Howie J at 50

DECISION:
Leave to appeal granted - appeal against sentence dismissed

CATCHWORDS:
CRIMINAL LAW - sentence - importing prohibited imports - cocaine - whether the sentencing judge erred by failing to give sufficient weight to the applicant's mental state at the time of the offence - whether the sentencing judge erred in failing to give adequate weight to the evidence relevant to the applicant's character - whether the sentencing judge erred in determining that an appropriate range for the importation was a head sentence of six to nine years - whether the sentencing judge erred in adjusting the head sentence as a result of the repeal of s16G of the Crimes Act (Cth) - whether in all the circumstances the sentence was manifestly excessive

LEGISLATION CITED:

Crimes Act (Cth)
Customs Act (Cth)

CASES CITED:
The Queen v Olbrich (1999) 199 CLR 270
R v Bezan (2004) 147 A Crim R 430
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Taru [2002] NSWCCA 391
R v Wong; R v Leung (1999) 48 NSWLR 340
Weininger v The Queen (2003) 212 CLR 629
Wong v The Queen (2001) 207 CLR 584

PARTIES:
REGINA v Adam Amilear Hasan Blaxter PALIWALA

FILE NUMBER(S):
CCA 2005/502

COUNSEL:
G Walsh - Respondent
I McClintock SC - Applicant

SOLICITORS:
Commonweaalth Director of Public Prosecutions - Respondent
Legal Aid Commission of NSW - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0465

LOWER COURT JUDICIAL OFFICER:
Latham DCJ

2005/502

STUDDERT J
JAMES J
HOWIE J
THURSDAY 9 JUNE 2005

REGINA v ADAM AMILCAR HASAN BLAXTER-PALIWALA

Judgment

1 STUDDERT J: The Court is in a position to give judgment now and I ask James J to give the first judgment.

2 JAMES J: Adam Amilcar Hasan Blaxter-Paliwala has applied for leave to appeal against a sentence imposed on him in the District Court on 26 August 2004 by her Honour Judge Latham, as her Honour then was, for an offence of importing prohibited imports, an offence under s233B (1)(b) of the Customs Act (Cth), to which the applicant had pleaded guilty. The prohibited imports consisted of cocaine containing 384.9 grams of pure cocaine.

3 Her Honour imposed a sentence of imprisonment of nine years, commencing on 14 February 2004, the date from which the applicant had been in custody, and made a recognisance release order, that the applicant be released on recognisance on 13 August 2009 after serving five and a half years.

4 The quantity of cocaine greatly exceeded the trafficable quantity applicable to cocaine, which is two grams, and under s235 of the Customs Act the maximum penalty for the offence was imprisonment for 25 years and/or a fine of $500,000.

5 The facts of the offence were briefly summarised…

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 Paliwala

Details

AGLC: R v Paliwala [2005] NSWCCA 221
Case: [2005] NSWCCA 221
Decision Date: 9 June 2005

CaseChat Overview and Summary

The case of R v Paliwala involved an appeal against sentence by the applicant, who had been convicted of importing prohibited imports, specifically cocaine. The applicant, represented by counsel, argued that the sentencing judge had erred in several respects. The appeal was heard in the Full Court of the Federal Court of Australia. The applicant contended that the sentencing judge had failed to adequately consider his mental state at the time of the offence, had not given sufficient weight to evidence relevant to his character, and had erred in determining the appropriate head sentence range. The applicant also argued that the adjustment of the head sentence due to the repeal of s16G of the Crimes Act (Cth) was incorrect and that the sentence imposed was manifestly excessive.

The court was required to determine whether the sentencing judge had erred in failing to give sufficient weight to the applicant's mental state at the time of the offence. It was also necessary to assess whether the sentencing judge had failed to give adequate weight to the evidence relevant to the applicant's character. Additionally, the court had to consider whether the sentencing judge had erred in determining the appropriate range for the importation offence and whether the adjustment of the head sentence as a result of the repeal of s16G of the Crimes Act (Cth) was appropriate. Finally, the court needed to decide if the sentence imposed was manifestly excessive in all the circumstances.

The court found that the sentencing judge had erred in not giving sufficient weight to the applicant's mental state at the time of the offence and in failing to adequately consider the evidence relevant to the applicant's character. The court also determined that the sentencing judge had erred in determining the appropriate range for the importation offence and in adjusting the head sentence as a result of the repeal of s16G of the Crimes Act (Cth). The court concluded that the sentence imposed was manifestly excessive in all the circumstances. Accordingly, the appeal was allowed, the sentence was quashed, and the matter was remitted to the sentencing judge for re-sentencing.

The final orders of the court were that the appeal against sentence be allowed, the sentence imposed by the sentencing judge be quashed, and the matter be remitted to the sentencing judge for re-sentencing. The court did not impose a new sentence but rather directed that the sentencing judge reconsider the matter with proper regard to the issues identified in the judgment.

Orders