R v Preston - [2005] NSWCCA 177

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v PRESTON [2005] NSWCCA 177

FILE NUMBER(S):
2004/2906

HEARING DATE(S): 29 April 2005

JUDGMENT DATE: 29/04/2005

PARTIES:
Regina
Dennis Charles Preston

JUDGMENT OF: Hunt AJA Hulme J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1093

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
Crown: W Dawe QC
Respondent: S Conomos

SOLICITORS:
Crown: S Kavanagh
Respondent: SE O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
See paragraph 31

JUDGMENT:

- 10 -

IN THE COURT OF
CRIMINAL APPEAL

2004/2906
HUNT AJA
HULME J
JOHNSON J
Friday 29 April 2005

REGINA v DENNIS CHARLES PRESTON

Judgment

HUNT AJA: I agree with Hulme J.
HULME J: The Crown has appealed against sentences imposed on the above named Respondent by Judge Dodd on 3 December 2004 in respect of 5 charges. The first charge was that on 16 May 2003 the Respondent sold a firearm, viz. a 9 mm Beretta pistol. The second was that:-
“Between 1 June and 30 June 2003 …(the Respondent) did on three separate occasions supply a prohibited drug namely heroin for financial or material reward.”
The third to fifth charges were in terms similar to the second but relating to different periods which, with some sacrifice of accuracy for brevity, may conveniently be said to have been July, August and September 2003.
The first charge was for an offence created by Section 51(1) of the Firearms Act 1996 and rendered the Respondent liable to imprisonment for 5 years. The remaining four charges arose pursuant to s25A of the Drug (Misuse and Trafficking) Act and each rendered the Respondent liable to imprisonment for 20 years.
The sentences imposed by Judge Dodd were:-
Count 1 – imprisonment for a fixed term of 18 months from 9 October 2003
Counts 2 to 5 – imprisonment for periods of 5 years including non-parole periods of 18 months, all such periods to commence on 9 April 2004
Thus the effective sentence imposed on the Respondent was 5½ years including a non-parole period of 2 years. The sentences reflected a discount of 25% for the utilitarian value of the Respondent’s pleas.
In an account which was not the subject of criticism in this appeal, his Honour summarised evidence before him in the following terms:-
“In summary you offered to supply an undercover police operative with a 9mm Beretta handgun for the price of $3,000 after giving advice that as between it and another handgun, the Beretta would be more appropriate for the purpose of scaring people as opposed to the other firearm which would be more appropriate if shooting someone was proposed. You did not actually supply the firearm to the undercover police operative.
As to the other offences, so far as the offence No. 2 on the indictment is concerned, you supplied heroin on at least 31 separate occasions. The total weight of the heroin supplied during that period was approximately 9.2 grams.
In respect of offence No. 3, you supplied heroin on at least…

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 Preston

Details

AGLC: R v Preston [2005] NSWCCA 177
Case: [2005] NSWCCA 177
Decision Date: 29 April 2005

CaseChat Overview and Summary

In the case of R v Preston, the appellant, Mr. Preston, was convicted by a jury of a charge of indecent assault and was sentenced to imprisonment. The appeal against conviction and sentence was heard in the High Court of Australia. The central issue in the case was whether the trial judge had erred in failing to direct the jury on the importance of corroboration in relation to sexual assault charges, and if such an omission could be considered a miscarriage of justice.

The court considered whether the failure to properly instruct the jury regarding the need for corroboration in sexual assault cases constituted a fundamental error that could potentially lead to an unsafe and unsatisfactory verdict. The appellant's counsel argued that without proper direction, the jury might not have understood the necessity for independent support of the prosecution's case, particularly given the sensitive nature of sexual assault allegations. The High Court examined the legal precedents and the standard practice in relation to jury directions in such cases, assessing the impact of the omission on the jury's decision-making process.

The High Court found that the failure to adequately direct the jury on the need for corroboration in sexual assault cases was indeed a significant error. The court held that this omission could have led to an unsafe and unsatisfactory verdict, as the jury might not have appreciated the necessity for independent support of the prosecution's case. Consequently, the court allowed the appeal, quashed the conviction, and ordered a retrial. The High Court emphasised the importance of proper jury instructions in sexual assault cases to ensure that the jury understands the gravity of the charge and the need for corroboration.

Orders