R v Patek - [2001] NSWCCA 315

CITATION: R v. Patek [2001] NSWCCA 315

FILE NUMBER(S): CCA 60203/01

HEARING DATE(S): 10 July 2001

JUDGMENT DATE:
10 July 2001

PARTIES :

Crown - applicant
George William PATEK - respondent

JUDGMENT OF: Hodgson JA at 1; Mathews AJA at 20; Studdert J at 21

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/0166

LOWER COURT JUDICIAL
OFFICER : Sorby DCJ

COUNSEL : Mr. MC. Grogan for Crown
Mr. T.A. Game SC for respondent

SOLICITORS: S.E. O'Connor for Crown
D.J. Humphreys for respondent

CATCHWORDS: CRIMINAL LAW - Crown appeal against sentence - No error of principle shown. ND

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

No. 60203/01

HODGSON JA
MATTHEWS AJA
STUDDERT J
Tuesday 10 July 2001

REGINA V. George William PATEK

JUDGMENT

1 HODGSON JA: On 27 November 2000 the respondent pleaded guilty to a charge under section 25A of the Drugs Misuse and Trafficking Act 1985 that between 13 March 2000 and 7 April 2000 in the State of New South Wales he did on four occasions supply a prohibited drug for financial reward, namely, on 13 March 2000 at Regents Park did supply heroin, on 20 March 2000 at Regents Park did supply heroin, on 22 March 2000 at Regents Park did supply heroin, and on 3 April 2000 at Darlinghurst did supply heroin.

2 On 28 February 2001 Judge Sorby sentenced the respondent to a term of imprisonment of twenty-seven months to date from 4 October 2000 and expire on 3 February 2003, and he set a non-parole period of twenty months to commence on 4 November 2000 and expire on 3 July 2002.

3 The Director of Public Prosecutions has appealed from that sentence pursuant to s 50 of the Criminal Appeal Act 1912 on the ground that it is manifestly inadequate.

4 The charge resulted from a police undercover operation which utilised a police undercover operative known as Tony. The evidence disclosed four transactions in each of which Tony obtained a plastic bag containing powder from the respondent in exchange for $140 in cash. The first three occurred at an address in Regents Park, following phone contact between Tony and the respondent, and the fourth occurred at Green Park, Darlinghurst, also following telephone contact between Tony and the respondent. On each occasion the conversation between Tony and the respondent was recorded by a listening device.

5 An analysis certificate showed that the quantity of powder involved in the transactions was respectively 0.40 grams, 0.42 grams, 0.40 grams, and 0.32 grams, and that, in each case, the powder contained heroin.

6 In the last of the recorded conversations the respondent is recorded as having quoted $270 for "one weight" meaning one gram offering to give a definite price for "three weights" if Tony telephoned the next day and recommending to Tony that he "make 50s out of a weight" to keep customers happy. The respondent is also recorded as saying to Tony, that in order to get it cheap, he should…

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 Patek

Details

AGLC: R v Patek [2001] NSWCCA 315
Case: [2001] NSWCCA 315
Decision Date: 10 July 2001

CaseChat Overview and Summary

In the case of R v Patek, the Crown sought to appeal against the sentence handed down by the lower court to the defendant, Patek, who was convicted of drug trafficking. The primary contention was whether the sentence imposed by the lower court was manifestly inadequate, warranting a higher penalty in light of the severity and circumstances of the offence. The appeal was heard by the higher court.

The central legal issue before the court was whether the sentence imposed by the lower court demonstrated an error of principle that warranted an appeal. Specifically, the court had to determine if the sentence was manifestly inadequate, considering the gravity of the offence and the need for deterrence and denunciation. The court also needed to examine whether the lower court had appropriately exercised its discretion in sentencing.

Upon reviewing the lower court's reasoning and the sentencing principles applicable to the case, the higher court found no basis for concluding that the sentence was an error of principle. The lower court had adequately considered the relevant aggravating and mitigating factors, including the defendant's role in the drug trafficking operation and his prior criminal history. The court found that the sentence reflected a balanced approach, taking into account the need for general and specific deterrence, as well as the rehabilitative potential of the defendant. Consequently, the appeal was dismissed. The higher court upheld the sentence imposed by the lower court, affirming that no significant error in principle was demonstrated.

Orders