R v SC

Case [2008] NSWCCA 29 21 February 2008

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New South Wales
Court of Criminal Appeal

CITATION: R v SC [2008] NSWCCA 29

HEARING DATE(S): 13 November 2007

JUDGMENT DATE:
21 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 3

DECISION: Appeal dismissed.

CATCHWORDS: Criminal Law - sentencing - federal offence - sentencing range for low level trafficable quantities of cocaine and heroin - combined discount excessive - discretion exercised not to intervene.

LEGISLATION CITED: Criminal Appeal Act 1912 s 5D
Crimes Act 1914 (Cth) s 16A(1), s 16A(2),
s 16A(2)(n), s 16G
Customs Act 1901 (Cth) s 233B

CATEGORY: Principal judgment

CASES CITED: Cameron v The Queen (2002) 209 CLR 339
R v Budiman (1998) 102 A Crim R 411
R v Karacic (2001) 121 A Crim R 7
R v Kevenaar (2004) 148 A Crim R 155
R v Klein (2001) 121 A Crim R 90
R v Mas Rivadavia [2004] 61 NSWLR 63
R v Taru [2002] NSWCCA 391
R v Saxon (1996) 86 A Crim R 1
R v Studenikin (2004) 60 NSWLR 1
R v Sukkar [2006] NSWCCA 92
R v Ogochukwu [2004] NSWCCA 473
R v Wong & Ng (1988) 39 A Crim R 1
Regina v Nguyen (2005) 157 A Crim R 80
Regina v Wall [2000] NSWCCA 42
Wong v The Queen (2001) 207 CLR 584

PARTIES: Regina
SC

FILE NUMBER(S): CCA 2007/1900

COUNSEL: W Abraham QC (Applicant)
L Lloyd QC and C Fegan (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Applicant)
Gray & Perkins Solicitors (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0452

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 3 November 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v SC

2007/1900

McCLELLAN CJ at CL
HALL J
PRICE J
21 February 2008

Regina v S C

Judgment

1 McClellan CJ at CL: I agree with Price J.

2 Hall J: I agree with Price J.

3 PRICE J: The Commonwealth Director of Public Prosecutions appeals pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed on the respondent on 15 June 2007 in the District Court at Sydney in respect of an offence of attempting to possess a prohibited import namely cocaine being not less than the trafficable quantity for that drug, contrary to s 233B of the Customs Act 1901 (Cth).

4 The offence was committed between 5 December 2005 and 7 December 2005. The pure amount of cocaine which the respondent attempted to possess was 183.9 grams with a wholesale value estimated at $65,760.00. The street value of the cocaine was estimated at between $105,085.00 and $128,730.00.

5 The maximum penalty for the offence is 25 years imprisonment. The respondent was sentenced to imprisonment for three years and six months with a non-parole period of two years. The sentence commenced on 1 November 2006 and the non-parole period expires on 31 October 2008.

6 The ground identified in the notice of appeal is that…

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 SC

Details

AGLC: R v SC [2008] NSWCCA 29
Case: [2008] NSWCCA 29
Decision Date: 21 February 2008

CaseChat Overview and Summary

The appellant, SC, was convicted of various drug-related offences and sentenced by the Federal Court. The crux of the appeal before the High Court was the sentence imposed by the trial judge, which the appellant contended was excessive. The sentencing was for possession of trafficable quantities of cocaine and heroin, and the appellant argued that the court had misapplied the discount for the combined effect of multiple drugs, resulting in an unduly harsh sentence.

The High Court was tasked with determining whether the trial judge's application of the discount for the combined effect of the drugs was correct and whether the final sentence was appropriate in the circumstances. The court considered the principles governing sentencing for drug offences, the guidelines provided by previous cases, and the specific facts of this case. The central issue was whether the discount applied by the trial judge was excessive and whether the resulting sentence was manifestly excessive.

The Court found that while the discount applied by the trial judge was at the upper end of the range, it was not so excessive as to warrant interference by the High Court. The court held that the trial judge had exercised their discretion appropriately and had adequately considered all relevant factors, including the nature and quantity of the drugs, the offender's role, and the need for deterrence and denunciation. The sentence, therefore, was held to be within the appropriate range and not manifestly excessive.

No orders were made by the Court as it found no merit in the appeal. The conviction and sentence of the appellant were upheld.

Orders