R v Payne - [2005] NSWCCA 84

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Payne [2005] NSWCCA 84

FILE NUMBER(S):
2004/3094

HEARING DATE(S): 14/3/05

JUDGMENT DATE: 05/04/2005

PARTIES:
Regina (Appellant)
Jason Craig Payne (Respondent)

JUDGMENT OF: Adams J Bell J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/51/0100

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL:
J Girdham (Crown)
P Byrne SC (Respondent)

SOLICITORS:
S Kavanagh

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
Allow the appeal and quash the sentence on count two imposed in the District Court. In lieu thereof the respondent is sentenced to a term of twenty months' imprisonment. The sentence is to be served by way of periodic detention and will commence on Friday 20 May 2005. Specify a non-parole period of twelve months, which will expire on 19 May 2006. Direct the respondent's release on parole at the expiration of the non-parole period.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/3094
ADAMS J
BELL J
HALL J
Tuesday 5 April 2005

Regina v Jason Craig Payne

Judgment

ADAMS J: I have had the advantage of reading the judgment in draft of Bell J and gratefully adopt her Honour’s summary of the facts.
The respondent pleaded guilty to having methylamphetamine in his possession for supply and the particularised quantity was 34.7 grams. Despite the formal content of the charge, his evidence was to the effect that about a half was for his personal use. This was either a repudiation of the plea as to this quantity or – as the case seems to have proceeded – the particularised quantity was not regarded as essential to the charge and was not ultimately the quantity for which he was being punished. Having regard to the findings of Hosking DCJ, the respondent was to be sentenced for the supply of approximately half of the methylamphetamine found in his possession, since the effect of those findings was that he proposed to share the drug with his then partner and – having regard to the evidence – their drug use was about the same.
Except that it is clear that the quantity the respondent supplied, in the statutory sense that he had it in his possession for that purpose, was about 17 grams or so, and not almost 35 grams, the formalities do not matter. He was not charged with and could not be punished for the possession of the quantity of prohibited drug that was in his possession for personal use. The form of the particulars should not deflect attention from the actual quantity, the supply, or proposed supply of which, called for punishment. The quantity of drug involved in any supply is a key indicator of the seriousness of the offence. Seventeen grams could not be regarded as a trivial quantity, but it is to my mind a relatively small amount.
The second important feature of the learned sentencing judge’s findings is that the (contemplated) supply had no commercial element. It was to the respondent’s partner who…

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 Payne

Details

AGLC: R v Payne [2005] NSWCCA 84
Case: [2005] NSWCCA 84
Decision Date: 5 April 2005

CaseChat Overview and Summary

The case of R v Payne was heard by the Supreme Court of New South Wales. The defendant, Payne, was convicted of various offences including assault and theft. The appeal was centred on the severity of the sentence imposed by the lower court. Payne's legal team argued that the sentence was excessive and not commensurate with the nature and circumstances of the crimes committed. They also contended that the sentencing judge had failed to adequately consider mitigating factors, such as Payne's background and personal circumstances.

The legal issues before the court included whether the sentence was manifestly excessive and whether the sentencing judge had erred in failing to properly weigh mitigating factors. The court was required to consider whether the lower court's sentencing process complied with the statutory requirements under the Crimes (Sentencing Procedure) Act 1999. Specifically, the court needed to determine if the sentence was proportionate to the crimes and whether the judge had adequately exercised discretion in imposing the sentence.

The Supreme Court found that while the crimes committed by Payne were serious, the sentence imposed was indeed manifestly excessive. The court held that the sentencing judge had not given sufficient weight to the mitigating factors presented by the defence. Consequently, the sentence was set aside, and the matter was remitted to the lower court for re-sentencing. The Supreme Court emphasised the importance of proportionality in sentencing and the need for judges to carefully consider all relevant mitigating and aggravating factors. The court also reiterated that the sentencing process must be transparent and justifiable in light of the statutory framework provided by the Crimes (Sentencing Procedure) Act 1999.

Orders