R v Phillips - [2003] NSWCCA 373

CITATION: Regina v Benjamin Phillips [2003] NSWCCA 373

HEARING DATE(S): 8/12/03

JUDGMENT DATE:
8 December 2003

JUDGMENT OF: Sully J at 1; Hulme J; Miles AJ

DECISION: Leave to appeal against sentence granted; Appeal against sentence allowed; Sentence quashed and in lieu sentenced to imprisonment for 3 years to commence on 30 May 2003 and to expire on 29 May 2006, with a non-parole period of 1 year and 3 months

CASES CITED: Regina v Thomson and Houlten (2000) 49 NSWLR 383
Regina v Ellis (1986) 6 NSWLR 603

PARTIES :
Regina
Benjamin Phillips

FILE NUMBER(S): CCA 60313/03

COUNSEL: G. I. Rowling - Crown
H. K. Dhanji - Appellant

SOLICITORS: S. Cavanagh - Crown
O'Brien Solicitors - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0276

LOWER COURT
JUDICIAL OFFICER : Shillington DCJ

60313/03

SULLY J
HULME J
MILES AJ
Monday 8 December 2003

REGINA v BENJAMIN PHILLIPS

JUDGMENT

1 SULLY J: The applicant, Mr Phillips, pleaded guilty before a Local Court Magistrate to a single charge of having supplied a prohibited drug. He was remanded accordingly to the District Court for sentence and appeared eventually before Judge Shillington QC.

2 His Honour dealt with the matter finally on 30 May 2003. His Honour sentenced the applicant to imprisonment for three years to date from 30 May 2003 and to expire on 29 May 2006; with a non-parole period of two years and three months to date from 30 May 2003 and to expire on 29 August 2005.

3 It is not disputed that his Honour’s canvass of the relevant general background and objective facts is correct, and it can be reproduced accordingly as part of this judgment.

“The prisoner, Benjamin Phillips, appeared before the Local Court and entered a plea of guilty to a charge that on 22 November of the year 2002 at Mascot he supplied a prohibited drug, that is, methyldioxymethylamphetamine 3.4 in an amount of 25 grams or 24.74 grams. He confirmed that plea before this Court.

The facts are that on 22 November 2002 the prisoner despatched from Mascot Airport via Australian Air Express a gift wrapped box to Jake Edmonds at 6/30 East Gordon Street, Mackay, Queensland. He placed his name with no details of an address in Australia as sender. The package was intercepted and x-rayed at Mackay Airport where it was found to contain 100 ecstasy tablets.

On Tuesday 26 November 2002 the prisoner attended Rose Bay Police Station where he stated he wished to confess to posting the parcel. He gave an account in an ERISP interview that he was about to start a catering business with a girlfriend and that he had called in a number of debts to provide necessary capital. He claimed an unidentified acquaintance who owed him $3500 for a long-standing loan had given him the drugs in payment of a debt; that he was fearful of this person and did not therefore demand cash. He sent the drugs in a birthday present package for his…

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 Phillips

Details

AGLC: Regina v Benjamin Phillips [2003] NSWCCA 373
Case: [2003] NSWCCA 373
Decision Date: 8 December 2003

CaseChat Overview and Summary

In Regina v Benjamin Phillips, the applicant, Benjamin Phillips, appealed against the sentence imposed by the District Court for supplying a prohibited drug. The appeal was heard by the NSW Court of Criminal Appeal, where the Court addressed three grounds of appeal raised by the appellant. The primary issue was whether the sentence imposed was excessive and whether it adequately accounted for certain mitigating factors, including the applicant's guilty plea and prospects for rehabilitation. The Court found that while the head sentence of three years was appropriate, the non-parole period of two years and three months was excessively long. The Court noted that the applicant's guilty plea and his prospects for rehabilitation warranted a finding of special circumstances, which would reduce the non-parole period.

The Court of Criminal Appeal considered the principles established in Thomson and Houlten and Ellis, which underscore the importance of considering a guilty plea and the disclosure of unknown guilt as factors for leniency. However, the Court concluded that the District Court did not sufficiently address these factors, particularly the applicant's prospects for rehabilitation. The Court of Criminal Appeal determined that the non-parole period should be reduced to reflect the special circumstances, ultimately setting it at fifteen months. The Court also recommended that the applicant be subject to uninterrupted supervision by the Probation and Parole Service upon his release from the non-parole period.

The Court of Criminal Appeal granted leave to appeal against the sentence, allowed the appeal, quashed the original sentence, and imposed a new sentence of three years imprisonment with a non-parole period of fifteen months. The Court emphasized the importance of considering the full evidence, including the applicant's prospects for rehabilitation, in determining an appropriate non-parole period.

Orders