R v Shepherd - [2003] NSWCCA 287

Reported Decision:
142 A Crim R 101

New South Wales

Court of Criminal Appeal

CITATION: R v Shepherd [2003] NSWCCA 287

HEARING DATE(S): 29/09/2003

JUDGMENT DATE:
16 October 2003

JUDGMENT OF: Tobias JA at 1; Howie J at 2; Shaw J at 29

DECISION: Application for leave to appeal is granted and the appeal is allowed. The sentence should be quashed and in lieu the applicant should be sentenced to imprisonment for 11 years 6 months with a non-parole period of 7 years 4 months to date from 5 December 2001. The non-parole period is to expire on 4 April 2009, the date upon which the applicant is eligible to be released to parole.

CATCHWORDS: Criminal Law and Procedure - appeal against severity of sentence - discount allowed by sentencing judge was inadequate and resulted in an excessive sentence.

LEGISLATION CITED: Customs Act 1901 - s 233B(1)(d)
Justices Act 1902 (now repealed) - s 51A
Crimes Act 1914 - ss 16A, 16G, 21E

CASES CITED: R v Meggett (1999) 107 A Crim R 157
R v Bushell (NSWCCA, 7 August 1998, unreported)
Chan (2002) 128 A Crim R 119
Budiman (1998) 102 A Crim R 411
Pang (1999) 105 A Crim R 474

PARTIES :
Regina v Maurice Charles Shepherd

FILE NUMBER(S): CCA 60173/03

COUNSEL: Ms M. Cinque - Crown
Mr M. Crowley - Applicant

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
Forshaws Neill Solicitors - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0839

LOWER COURT
JUDICIAL OFFICER : Gibson DCJ

60173/03

TOBIAS JA
HOWIE J
SHAW J
THURSDAY 16 OCTOBER 2003

REGINA v MAURICE CHARLES SHEPHERD

Judgment

1 TOBIAS JA: I agree with Howie J.

2 HOWIE J: The applicant seeks leave to appeal against a sentence imposed upon him by Judge Gibson QC in the District Court on a charge of being knowingly concerned in the importation of not less than a commercial quantity of a drug shortly referred to as MDMA or ecstasy. This is an offence contrary to s 233B(1)(d) of the Customs Act and carries a maximum penalty of a fine of $750,000 or life imprisonment or both. A commercial quantity of ecstasy is 0.5 kilograms.

3 On 8 November 2002 his Honour sentenced the applicant to imprisonment for 14 years to date from 5 December 2001 and specified a non-parole period of 9 years to commence on the same date and to expire 4 December 2010. The matter was listed before his Honour again on 14 November 2002 on an application of the Crown for clarification of his Honour’s sentencing remarks. I will return to that matter shortly but what occurred on that date did not affect the sentence imposed.

4 The applicant had pleaded guilty to the charge in the Local Court on 7 August 2002 and was committed for sentence to the District Court under s 51A of the Justices Act (now repealed). He adhered to his plea before Judge Gibson on 24 October 2002.

5 In evidence before…

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 [2003] NSWCCA 287
Case: [2003] NSWCCA 287
Decision Date: 16 October 2003

CaseChat Overview and Summary

In the matter of R v Shepherd, the appellant, a person convicted of serious criminal offences, sought to appeal against the severity of the sentence imposed upon him. The case was heard in the appellate court, which was tasked with determining whether the original sentencing judge had appropriately applied the relevant legal principles in arriving at the sentence. The appellant argued that the discount allowed by the sentencing judge was inadequate, resulting in an excessively harsh sentence.

The primary legal issue before the court was whether the sentencing judge had correctly applied the principles of sentencing and, specifically, whether the discount allowed for the appellant’s early guilty plea and other mitigating factors was insufficient. The court was required to examine the sentencing principles and the extent to which they were applied in the appellant's case. Additionally, the court needed to assess whether the overall sentence was disproportionate to the gravity of the offences committed.

The appellate court found that the sentencing judge had indeed erred in the application of the discount for the appellant’s early guilty plea and other mitigating factors, resulting in an excessive sentence. The court highlighted that the discount allowed was inadequate when considering the totality of the circumstances and the nature of the offences. As a result, the court deemed the sentence to be manifestly excessive and ordered a re-sentencing by the original sentencing judge or another appropriately qualified judicial officer. The court provided detailed guidelines to ensure that the re-sentencing would appropriately reflect the legal principles applicable to the case.

Orders