R v Reicher - [2003] NSWCCA 300

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v REICHER [2003] NSWCCA 300

FILE NUMBER(S):
60196/03

HEARING DATE(S): 1 October 2003

JUDGMENT DATE: 01/10/2003

PARTIES:
Regina
Manfred REICHER

JUDGMENT OF: Hulme J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0173

LOWER COURT JUDICIAL OFFICER: NAUGHTON DCJ

COUNSEL:
Crown: P Ingram
Appellant: H Dhanji

SOLICITORS:
Crown: CK Smith
Appellant: B Sandland

CATCHWORDS:

LEGISLATION CITED:

DECISION:
See paragraph 40

JUDGMENT:

- 13 -

IN THE COURT OF
CRIMINAL APPEAL

60196/03
HULME J
GREG JAMES J
Wednesday, 1 October 2003

R v Manfred REICHER

Judgment

HULME J: On 5 December 2002 this applicant for leave to appeal was sentenced by Naughton DCJ in respect of four offences to which he had previously pleaded guilty at the Newcastle Local Court. The offences, and some factors relevant thereto, were:
(i)On 14 September 2001 supplying 0.5 grams of methylamphetamine. This was a breach of Section 25(1) of the Drug (Misuse and Trafficking) Act 1985. The quantity represented half of a “small” quantity within Schedule 1 to the Act and the maximum period of imprisonment prescribed was fifteen years.
(ii)On 21 September 2001 selling a firearm namely a “Walther” semi automatic pistol to someone who is not a licensed firearms dealer without the sale having been arranged through a licensed firearms dealer or witnessed by an authorised police officer or the offender not himself being a licensed firearms dealer. This offence was a breach of Section 51(2) of the Firearms Act, 1966, the maximum period of imprisonment prescribed being twenty years.
(iii)On 21 September 2001 selling a “Coachman” brand shotgun without the sale having been arranged through a licensed firearms dealer or witnessed by an authorised police officer or the offender not himself being a licensed firearms dealer. This offence also was a breach of Section 51(2) of the Firearms Act, 1966, but because of the nature of the weapon the maximum period of imprisonment prescribed was five years. The sale was in fact an offer to sell, there being an expanded definition of “sell” in the Firearms Act so as to include an offer to sell.
(iv)On 25 October 2001 supplying eight grams of methylamphetamine. In fact the supply was a deemed supply, this quantity having been found during the execution of a search warrant at the applicant’s premises. The offence is also a breach of Section 25(1) of the Drug (Misuse and Trafficking) Act and again the maximum period of imprisonment prescribed was fifteen years.
The sentences imposed for the four offences were, respectively:
(i)Imprisonment for a fixed term of one year commencing on 5 December 2002.
(ii)Imprisonment for a fixed term of two years commencing on 5 December 2003.
(iii)Imprisonment for a fixed term of one year commencing on 5 December 2003.
(iv)Imprisonment for two years including a non-parole period of eighteen months, both such terms commencing on 5 December 2005.
Thus the effective sentence for the four offences was five years, including what…

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 Reicher

Details

AGLC: R v Reicher [2003] NSWCCA 300
Case: [2003] NSWCCA 300
Decision Date: 1 October 2003

CaseChat Overview and Summary

The case of R v Reicher is an appeal against the sentence imposed by Naughton DCJ. The applicant, Reicher, had been convicted of various drug-related offences and sentenced to a total of five years imprisonment with a non-parole period of four and a half years. Reicher appealed against the sentence, arguing that it was excessive and should be reduced. The appeal was heard by the court, which had to determine whether the sentence was appropriate and, if not, what alternative sentence should be imposed.

The legal issues before the court were whether the sentence imposed by the trial judge was excessive, and if so, what should be the appropriate sentence in light of the circumstances of the case. The court had to consider the nature and circumstances of the offences, the need for deterrence and rehabilitation, and the principles of sentencing. The court also had to consider the relevant statutory provisions, including the Crimes (Sentencing Procedure) Act and the Criminal Appeal Act.

The court found that the sentence imposed by the trial judge was inadequate and that a more severe sentence was warranted. The court noted that the offences committed by Reicher were serious and had significant social costs, and that the sentence imposed did not adequately reflect the gravity of the offences. The court also considered Reicher’s subjective circumstances, including his age and the fact that he had not committed any further offences since 1982. The court concluded that the sentence should be increased and that the appropriate sentence was two years imprisonment with a non-parole period of nine months. The court also directed that Reicher be released on parole at the expiration of the non-parole period.

The court made the following orders: leave to appeal was granted, the appeal against the sentences on counts 1, 2 and 3 was dismissed, the appeal against the sentence on count 4 was allowed and the sentence was quashed, and a new sentence of two years imprisonment with a non-parole period of nine months was imposed. The court also directed that Reicher be released on parole at the expiration of the non-parole period and recommended that he be subject to appropriate treatment for his alcoholism.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HULME J

In light of the conclusion to which I have come it is unnecessary to consider this ground.Conclusion The question then arises what course this court should follow in the appeal. In this connection it is relevant to bear in mind the terms of section 6(3) of the Criminal Appeal Act which provides that:“On an appeal under Section 5(1) against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.” A deal of misery is created by those who indulge themselves in amphetamines, not only to themselves but also to others. Time after time those of us involved in the legal system see the havoc which those whose minds have been addled by such drugs wreak on the lives of others. Those who choose, for whatever reason, to profit, or, indeed, sustain themselves by distributing such drugs deserve, as was said in R v Le Cerf (supra) heavy punishment. So far as the individual head sentences are concerned it was not submitted by counsel for the applicant that any one of them was excessive. Certainly they are not. Indeed a fact which should be taken into account is that, in my view, the sentence imposed on the second count, that of selling the automatic pistol, was extremely lenient. There has been no Crown appeal and it cannot in that situation be increased, except in circumstances where notice was provided to the applicant and him given an opportunity of withdrawing his appeal. But the view which I take in relation to that sentence colours the course which I think should be adopted in the resolution of the appeal. I take the view that that sentence was wholly inadequate and that the total of the head sentences which were imposed should have been substantially heavier. But if one does not increase the head sentence one is left with the four and a half years effective non-parole period and five years total period which his Honour imposed. The six months parole period provided is of itself an error but absent an increase in the effective head sentence, that error can only be dealt with by reducing the effective non-parole period and, indeed, reducing it to an extent which would also result in error. Thus the court is faced with the situation that whether it interferes or whether it does not, there will be error in the result. For a time this situation inspired me to think that the court should leave the matter as it is, but ultimately I have been persuaded that the court should interfere. I am moved in this regard to an appreciable extent by the applicant’s subjective circumstances and by the fact that since 1982 he seems to have managed to avoid committing offences of dishonesty. The conclusion at which I have arrived is that the court should interfere to the extent of providing a parole period of twenty-five per cent of the total five year sentence. This should be done by leaving the sentences on the first three counts as they were imposed and allowing the appeal in relation to the sentence imposed on the fourth count, quashing that sentence and imposing a sentence of two years including a non-parole period of nine months and directing the applicant’s release to parole at the expiration of that period. Because the sentence is one of under three years, and the terms of the Crimes (Sentencing Procedure) Act, the court is required to make an order directing the release of the applicant on parole at the end of the non-parole period. We are entitled also under section 51 of the Crimes (Sentencing Procedure) Act to impose conditions on any such parole order and, in my view, subject to hearing from the parties, that is a course which the court should follow.

Ratio Decidendi

Legal Principle Established

Established by: HULME J

The following orders will express that intention:1. Leave to appeal is granted.2.The appeal against the sentences imposed by Naughton DCJ on the applicant on 5 December 2002 in respect of counts 1, 2 and 3 are dismissed.3.The appeal against the sentence imposed by Naughton DCJ on the applicant on 5 December 2002 on count 4 is allowed and that sentence is quashed.4.In respect of count 4 the applicant is sentenced to imprisonment for two years commencing on 5 December 2005 and expiring on 4 December 2007, such term to include a non-parole period of nine months commencing on 5 December 2005 and expiring on 4 September 2006.5.The court directs that at the expiration of the non-parole period the applicant be released to supervised parole on the terms envisaged by regulation 217 of the Crimes (Administration of Sentences) Regulations.6.The earliest date upon which the applicant will be eligible for release on parole is 5 September 2006. The court records that there are special circumstances being the accumulation of the sentences imposed by Naughton DCJ, the absence of non-parole periods in respect of the sentences imposed on counts 1, 2 and 3, the applicant’s age and his need for rehabilitation in particular arising from his alcoholism. The court recommends to the parole authorities that on the applicant’s release to parole he be subject to appropriate treatment for that alcoholism. We note also that although reasons for this course were not expressed by Naughton DCJ it is apparent that no non-parole periods were fixed on counts 1, 2 and 3, having regard to the total number and structure of the sentences.