R v Ramos - [2000] NSWCCA 189

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Ramos [2000] NSWCCA 189

FILE NUMBER(S):
60620/99

HEARING DATE(S): 12/5/2000

JUDGMENT DATE: 26/05/2000

PARTIES:
Regina
Alan De Silva Ramos

JUDGMENT OF: Spigelman CJ Wood CJ at CL Foster AJA Grove J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/41/0174

LOWER COURT JUDICIAL OFFICER: J B Phelan DCJ

COUNSEL:
P.G. Berman (Crown), M. Grogan

D.G. Dalton

SOLICITORS:
S.E. O'Connor

CATCHWORDS:
CRIMINAL LAW
sentencing
supply of a prohibited drug, Drug Misuse and Trafficking Act 1985 s25
SENTENCING
sentence manifestly lenient
discretion to not re-sentence
public interest in not interfering with demonstrated rehabilitation

LEGISLATION CITED:

DECISION:
Appeal dismissed
Conviction and sentence confirmed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60620/99
SPIGELMAN CJ
WOOD CJ at CL
FOSTER AJA
GROVE J
JAMES J
Friday 26 May 2000

REGINA v Alan De Silva RAMOS
JUDGMENT

SPIGELMAN CJ: I agree with Wood CJ at CL.

IN THE COURT OF
CRIMINAL APPEAL

No. 60620 of 1999

SPIGELMAN CJ
WOOD CJ at CL
FOSTER AJA,
GROVE J
BM JAMES J

FRIDAY 26 MAY 2000

Regina v Alan De Silva RAMOS

JUDGMENT

WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions, pursuant to S 5D of the Criminal Appeal Act 1912, against the sentence imposed upon the respondent by his Honour Judge J. B. Phelan, at the Wollongong District Court, on 7 October 1999.
Following his plea of guilty, at the Wollongong Local Court on 23 June 1998, the respondent was committed for sentence to the District Court on four counts of supply a prohibited drug contrary to S 25(1) Drug Misuse & Trafficking Act 1985 - offences for which the maximum penalty was imprisonment for fifteen years or a fine of 2,000 penalty units, or both.
The respondent adhered to his plea and asked his Honour to take into account upon sentence, a further three matters on a Form 1, namely, drive an unregistered vehicle, use an uninsured vehicle, and drive while disqualified. The sentence imposed by his Honour, after taking into account those other matters, was one of imprisonment for twenty-four months, made up of a minimum term of six months, which expired on 31 March 2000, and an additional term of eighteen months.
Facts
The offences under the Drug Misuse and Trafficking Act 1985 related to the supply of methylamphetimine, on four separate occasions during the period 6 February to 27 February 1998, to an undercover police officer. This arose in the course of Operation Ghana, which was directed towards the sale of amphetamines and ecstasy.
The first offence occurred when the undercover officer met with the respondent in a car park at Lake Heights. The respondent quoted a price of $250 for a quarter of methylamphetamine, and indicated that he could supply in pounds or ounces. The quantity sold on this occasion was found to be 4.9 gms.
The respondent met the undercover agent again at the same place on 18 February 1998. On this occasion…

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 Ramos

Details

AGLC: R v Ramos [2000] NSWCCA 189
Case: [2000] NSWCCA 189
Decision Date: 26 May 2000

CaseChat Overview and Summary

The case of R v Ramos concerns an appeal against the sentence imposed on the respondent for supplying a prohibited drug on multiple occasions. The matter was heard by the New South Wales Court of Criminal Appeal, which was tasked with determining whether the sentence imposed by the trial judge was manifestly lenient or otherwise displayed an error of law. The respondent, who was convicted of supplying methylamphetamine to an undercover police officer on four separate occasions, was sentenced to imprisonment for a total of twenty-four months. The trial judge had taken into account several mitigating factors, such as the respondent's early guilty plea and his progress towards rehabilitation.

The primary legal issues before the Court of Criminal Appeal were whether the sentence imposed was manifestly lenient and whether it displayed an error of law. The Court had to consider whether the sentence appropriately reflected the gravity of the offences, the respondent's culpability, and the need for general deterrence, while also taking into account the mitigating factors presented. The Court of Criminal Appeal found that the sentence was manifestly lenient and contained several errors of law, including insufficient consideration of the objective gravity of the respondent's misconduct, the accumulation of offences, and the need for general deterrence. The Court also found that the sentence structure was illogical, as it gave the respondent two benefits for the same mitigating factors.

In light of these findings, the Court of Criminal Appeal set aside the sentence imposed by the trial judge and ordered a re-sentencing hearing. The Court emphasised the importance of ensuring that sentences for drug supply offences reflect the seriousness of the crimes and the need for general deterrence, while also considering the individual circumstances of the offender. The Court also highlighted the need for consistency in sentencing, so that similar offences are punished in a similar way. Ultimately, the Court's decision in R v Ramos serves as a reminder to trial judges of the importance of carefully considering all relevant factors when imposing a sentence, and of the need for consistency in sentencing drug supply offences.

Orders

Orders of the court

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Background

Background to the litigation

The respondent adhered to his plea and asked his Honour to take into account upon sentence, a further three matters on a Form 1, namely, drive an unregistered vehicle, use an uninsured vehicle, and drive while disqualified. The sentence imposed by his Honour, after taking into account those other matters, was one of imprisonment for twenty-four months, made up of a minimum term of six months, which expired on 31 March 2000, and an additional term of eighteen months.Facts The offences under the Drug Misuse and Trafficking Act 1985 related to the supply of methylamphetimine, on four separate occasions during the period 6 February to 27 February 1998, to an undercover police officer. This arose in the course of Operation Ghana, which was directed towards the sale of amphetamines and ecstasy. The first offence occurred when the undercover officer met with the respondent in a car park at Lake Heights. The respondent quoted a price of $250 for a quarter of methylamphetamine, and indicated that he could supply in pounds or ounces. The quantity sold on this occasion was found to be 4.9 gms. The respondent met the undercover agent again at the same place on 18 February 1998. On this occasion their conversation was recorded pursuant to a lawfully obtained listening device. The respondent produced a pair of electronic scales from the glove box of his car, and weighed out 27.4 gms, for which he was paid $800. The undercover agent indicated that, on the next occasion, he wanted to purchase 4 ounces. The respondent said that he could also sell ecstasy at a price of $35 each for ten or more tablets. On 26 February 1998, the undercover agent rang the appellant on his mobile phone and organised the purchase of 100 ecstasy tablets and 4 ounces of methylamphetamine. When they met, the respondent produced two plastic resealable bags containing tablets and white powder respectively. The operation was brought to an end at that point with the arrest of the appellant. The bags in his possession were found to contain 220 gms of methylamphetamine, and 100 tablets with a total weight of 26.6 gms,, containing traces of methylamphetamine and caffeine. A list of names and numeric accounts was found in his wallet, indicating that he was owed $6,000 by drug customers. The Crown case, it may be accepted, was overwhelming, although clearly there was a significant utilitarian value in the pleas which were offered by the appellant at the first available moment. He was properly entitled to a discount in that regard. In sentencing the applicant his Honour had before him the following subjective circumstances: In my view, the sentence imposed was manifestly lenient and displayed error of law in several ways:a) the offences involved were serious incidents, connected with the ongoing supply of drugs for reward, and were such that insufficient weight was given to the objective gravity of the respondent’s misconduct, or to the accumulation of offences which had to be taken into account in assessing the overall criminality involved: Dodd (1991) 57 A Crim R 349 and Rushby (1997) 1 NSWLR 594.b) insufficient weight was given to the circumstance that the offences occurred at a time when the respondent was subject to a bond and to a Community Service Order, matters significantly aggravating his criminality: Readman (1990) 47 A Crim R 181 and Tran (1999) NSW CCA 109;c) the respondent fell into the category of offender who sells for greed, but does not use - again a matter of aggravation: Liang CCA (NSW) 2 June 1995 unreported;d) the sentences were so short and so structured as to provide no element of general deterrence, a matter of some significance in relation to the drug trade: Myers CCA (NSW) 13 February 1990 unreported, Clarke CCA (NSW) 15 March 1990, Swann CCA (NSW) 17 July 1992 unreported and Cacciola CCA(NSW) 15 October 1998;e) His Honour, although appropriately acknowledging the respondent’s subjective circumstances and his progress towards rehabilitation, gave undue weight to those factors, at the price of not imposing a sentence which was called for by the offences;f) His Honour also fell into error which was illogical, in the way that the sentence was structured. Having given the respondent the benefit of his favourable subjective circumstances and of his progression towards rehabilitation, in fixing an overall sentence, he then gave him a second benefit for the same matters, in finding special circumstances, and in structuring a sentence that was made up of a minimum term of only six months and an additional term of eighteen months. Yet, if the respondent had rehabilitated himself, as his Honour found, there was little purpose in an extended period of release on parole, particularly since in its pre-sentence report the Probation & Parole Service advised that it saw no need for supervision.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GROVE J WOOD CJ

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Ratio Decidendi

Legal Principle Established

Established by: GROVE J, WOOD CJ

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