R v Shepherd - [1999] NSWCCA 162

CITATION: R v Shepherd [1999] NSWCCA 162

FILE NUMBER(S): CCA 60801/98

HEARING DATE(S): 11 June 1999

JUDGMENT DATE:
11 June 1999

PARTIES :

Regina v James Lawrence SHEPHERD

JUDGMENT OF: Grove J at 25; Carruthers AJ at 1-24

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0655

LOWER COURT JUDICIAL OFFICER: Viney J

COUNSEL: R A Hulme for the Crown
R Burgess for the Applicant

SOLICITORS: C K Smith for the Crown
Michael Croke & Co for the Applicant

CATCHWORDS: Criminal law - sentence appeal against severity; Supplying prohibited drug (cannabis).; Sentencing discretion in particular circumstances.; Matter could have been dealt with in Local Court.

ACTS CITED: Drugs Misuse and Trafficking Act 1995
Criminal Procedure Act 1986

CASES CITED:
Dalton - Morgan, CCA, unreported 14/12/1989
Jason Clyde Smith, CCA, unreported 11/9/1991
Le Cerf (1975-6) 8 ALR 349 at 351

DECISION: Leave to appeal granted.; Appeal dismissed.

- 1 -
IN THE COURT OF
CRIMINAL APPEAL
60801/98

GROVE J
CARRUTHERS AJ

FRIDAY 11 JUNE 1999

JAMES LAWRENCE SHEPHERD v REGINA (NSW)

JUDGMENT
1 CARRUTHERS AJ: James Lawrence Shepherd seeks leave to appeal against a sentence imposed upon him by Judge Viney QC at the District Court Sydney on 16 September 1998.
2 The applicant had pleaded guilty to one count of supply prohibited drug (cannabis). See section 25(1) and section 32(1)(h) of the Drugs Misuse and Trafficking Act 1995 which offence carries a maximum penalty of 10 years imprisonment or $200,000 fine or both.
3 His Honour sentenced the applicant to a minimum term of nine months imprisonment to commence on 16 November 1998 and to expire on 15 September 1999 and imposed an additional term of 12 months to commence on 16 September 1999 and to expire on 15 September 2000. His Honour said that he had taken into account in the sentence that the applicant spent 10 days in pre-sentence custody. In fact it would appear that the precise period of pre-sentence custody was 8 days.
4 It was accepted by the Crown that in view of the quantity of cannabis involved this matter could have been finalised in the Local Court in which case the maximum custodial penalty would have been two years imprisonment.
5 It is relevant to notice in this regard Part 9A: “Summary Disposal of Indictable Offences by Local Courts” in the Criminal Procedure Act 1986. This offence is to be dealt with summarily by the Local Court unless the prosecuting authority elects in accordance with Part 9A, to have the offence dealt with on indictment. Thus it is different to some other provisions which provide that an offence may be dealt summarily within the Local Court on the election of the prosecuting authority. The stress here is that primarily the matter is a Local Court matter unless there is an affirmative election by the prosecuting authority that the matter proceed in the District Court where there is of course a much greater maximum penalty.
6 There was some discussion about the…

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 Shepherd

Details

AGLC: R v Shepherd [1999] NSWCCA 162
Case: [1999] NSWCCA 162
Decision Date: 11 June 1999

CaseChat Overview and Summary

The case of R v Shepherd involved the appellant, Shepherd, appealing against the severity of his sentence. The appellant had been convicted of supplying a prohibited drug, specifically cannabis. The appeal was heard in the higher court, where the appellant argued that the sentence imposed was too harsh, particularly considering that the matter could have been dealt with in the Local Court.

The legal issues central to the appeal were whether the sentence imposed by the lower court was manifestly excessive and whether the higher court should exercise its discretion to reduce the severity of the sentence. Additionally, the court had to consider whether the matter could have appropriately been dealt with in the Local Court, which might have implications for the sentencing approach.

The court considered the principles of sentencing and the discretion available to higher courts in reviewing sentences. It was noted that while the lower court had the authority to impose the sentence, the higher court could intervene if the sentence was manifestly excessive. The court examined the particular circumstances of the case, including the nature of the offence and the appellant's criminal history. The court also deliberated on the appropriateness of the matter being dealt with in the Local Court. Ultimately, the court determined that the sentence was not manifestly excessive and did not warrant a reduction. The court affirmed that the sentence was appropriate given the circumstances and the need to maintain consistency in sentencing practices.

The final orders of the court were that the appeal against the severity of the sentence was dismissed. The appellant's sentence remained unchanged, and he was to serve the term as imposed by the lower court.

Orders