R v Poulsen - [2002] NSWCCA 108

CITATION: R v Poulsen [2002] NSWCCA 108

FILE NUMBER(S): CCA 60678/01

HEARING DATE(S): 28 March 2002

JUDGMENT DATE:
28 March 2002

PARTIES :

Regina v Peter Poulsen

JUDGMENT OF: Studdert J at 1; Smart AJ at 28

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0773

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : D.M. Woodburne (Crown)
G.J. Bellew (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
A.J. Law & Co. (Applicant)

LEGISLATION CITED: Drug Misuse and Trafficking Act

CASES CITED:
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Lo [2001] NSWCCA 271
Cameron v The Queen [2002] HCA 6

DECISION: See para 27

60678/01

STUDDERT J
SMART A-J
Thursday 28 March 2002

REGINA v PETER POULSEN

Judgment

1 STUDDERT J: The applicant, Peter Poulsen, seeks leave to appeal against a sentence imposed by his Honour Judge Gibson of Queen’s Counsel on 28 September 2001.

2 The offence charged, and for which the applicant was convicted after pleading guilty to it, was an offence of knowingly take part in the supply of a prohibited drug, namely cocaine. The sentence imposed was a term of imprisonment of four years commencing on 28 September 2001. His Honour fixed a non parole period of two years expiring on 28 September 2003, having found that there were special circumstances.

3 The applicant’s offence was one against s 25(2) of the Drug Misuse and Trafficking Act and the maximum penalty for this class of offence was imprisonment for fifteen years and/or a fine of $220,000.

4 The offence was committed on 17 February 2001. Police were patrolling in the Kings Cross area where they observed a vehicle stopped in Earl Street and the applicant was seen in the driver’s seat. There were two passengers in the car. Police approached the applicant requiring production of his licence and when he opened the door to get out of the vehicle a small orange water balloon was observed on the floor of the car. A search followed and thirty balloons were found in a cigarette packet and a further four in the centre console. On analysis, the balloons were found to contain cocaine weighing altogether 6.1 grams. The cocaine had a street value of $2450.

5 The applicant was taken to the police station at Kings Cross where he participated in a recorded interview. He told the police that on the day before his arrest he had obtained the cocaine from a person known as Alfred, one of the people in the car when the police detected the cocaine. He said that during the morning of 17 February 2001 he went out to Marrickville where the cocaine was given to him. He went on to give police details of the journey that took him to Earl Street which it is unnecessary here to relate.

6 The applicant gave evidence before the District Court and admitted that some of his answers given in the police interview were false. Specifically, he admitted he lied about where he…

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 Poulsen

Details

AGLC: R v Poulsen [2002] NSWCCA 108
Case: [2002] NSWCCA 108
Decision Date: 28 March 2002

CaseChat Overview and Summary

In the case of Regina v Peter Poulsen, the applicant, Peter Poulsen, sought leave to appeal against a sentence imposed by the District Court. Poulsen was convicted of knowingly taking part in the supply of a prohibited drug, specifically cocaine, and was sentenced to four years' imprisonment, with a non-parole period of two years. The legal issues that the court was required to decide included whether the sentence was manifestly excessive and whether there were any errors in the sentencing process. The applicant argued that the sentence was excessive due to his young age, prior good character, guilty plea, expressions of remorse, the relatively small quantity of drug involved, and his limited objective criminality. Additionally, the applicant's counsel argued that there were errors in the sentencing remarks, specifically the failure to consider the applicant's previous good character and the inappropriate consideration of the strength of the Crown case when determining the discount for the utilitarian value of the plea.

The court found that there was indeed an error in the sentencing process, particularly in relation to the consideration of the strength of the Crown case when determining the discount for the utilitarian value of the plea. However, the court noted that the discount of twenty per cent was not ungenerous and that the applicant's early guilty plea and efforts towards rehabilitation should be taken into account. The court concluded that the sentence imposed was manifestly excessive and should be quashed. In lieu of the original sentence, the court proposed a sentence of three years' imprisonment with a non-parole period of one year. The applicant was to be released on parole on 27 September 2002. The court granted leave to appeal and allowed the appeal, quashing the original sentence and imposing the new sentence as proposed.

Orders