Appeal allowed; sentence imposed by Murrell DCJ quashed; By majority (Heydon JA, Carruthers AJ; Hulme J dissenting); in lieu thereof respondent sentenced to imprisonment for five years to date from 20 September 2001 to 19 September 2006; non-parole period of three years to commence on 20 September 2001 and expire on 19 September 2004; the Court directs the respondent's solicitor to explain the fresh sentence to the respondent in accordance with s16F of the Crimes Act 1914.
CATCHWORDS:
Sentencing - Crown appeal against alleged manifest inadequacy of sentence - attempted possession of prohibited imports - not less than a commercial quantity of Ecstasy - two further offences on a Schedule - respondent elects not to give evidence at sentence hearing - whether and to what extent judge entitled to act upon hearsay material - probation and parole report and statements made from the bar table - appropriate allowance for assistance to the authorities considered.
LEGISLATION CITED:
Crimes Act 1914, s 16A(2), s 16G, s 20(1)(b) Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act, 2002 Customs Act 1901, s 233B (1), 233B(1)(c), 235(2)
[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 Schofield
Sign in free to access the full text
Details
AGLC
R v Schofield [2003] NSWCCA 3
Case
[2003] NSWCCA 3
Decision Date
CaseChat Overview and Summary
The case of R v Schofield involved the respondent who was convicted of attempting to possess prohibited imports, specifically not less than a commercial quantity of Ecstasy, as well as two additional offences on a Schedule. The Crown appealed against the sentence imposed by the lower court, arguing that it was manifestly inadequate. The appeal was heard in the relevant appellate court. The central legal issue before the court was the extent to which the sentencing judge could consider hearsay material when the respondent chose not to testify at the sentencing hearing. This included a probation and parole report, as well as statements made by the respondent from the bar table. The court needed to determine whether an appropriate allowance could be made for the respondent's assistance to the authorities and the impact of this on the sentencing decision.
The court examined the principles governing the use of hearsay evidence in sentencing hearings. It found that while the primary rule is that the defendant has a right to be heard and to give evidence, there are exceptions where the court can take into account hearsay material. The court considered the circumstances of the case, including the respondent's decision not to give evidence, and whether the hearsay material was reliable and relevant. The court concluded that in this instance, it was appropriate for the sentencing judge to consider the hearsay material, particularly in light of the respondent's substantial cooperation with the authorities. The court held that the judge was entitled to make an appropriate allowance for this cooperation when determining the sentence.
The appellate court found that the sentence imposed by the lower court was indeed manifestly inadequate and set it aside. The respondent was re-sentenced, taking into account the factors identified by the lower court, as well as the additional considerations regarding the respondent's cooperation with authorities. The final orders of the court included a new sentence that reflected the appropriate weight given to all relevant factors, including the hearsay material and the respondent's assistance to the authorities.