R v SJD - [2004] NSWCCA 182

CITATION: REGINA v SJD [2004] NSWCCA 182

HEARING DATE(S): 8 June 2004

JUDGMENT DATE:
10 June 2004

JUDGMENT OF: Mason P at 1; Levine J at 2; Kirby J at 54

DECISION: 1. Leave to appeal granted.; 2. Appeal allowed.; 3. The non-parole period ordered for count 2 be set aside and in lieu, the appellant having been sentenced to a term of imprisonment for a term of 2 years and 6 months to date from 5 July 2003 and to expire on 4 January 2006, be ordered to serve a non-parole period of 1 year to commence on 5 July 2003 and to expire on 4 July 2004.

CATCHWORDS: Sentencing - parity - special circumstances

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 s25A(1), s25(2) , s33(2)(a)

CASES CITED: Lowe v The Queen (1984) 154 CLR 606
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
Regina v Chen, Siregar, Ismunandar & Lau (2002) 130 A Crim R 300
Regina v Diamond (unreported, NSWCCA, 18 February 1993)
Regina v Howard (1992) 29 NSWLR 242
Regina v Watson (unreported, NSWCCA, 25 February 1982)

PARTIES :

REGINA
(Respondent)
v
SJD
(Applicant)

FILE NUMBER(S): CCA 60040 OF 2004

COUNSEL:
P Ingram
(Respondent)
R Button
(Applicant)

SOLICITORS:
S Kavanagh
(Respondent)
SE O'Connor
(Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0058

LOWER COURT
JUDICIAL OFFICER : Solomon DCJ

- 1 -

60040 OF 2004

MASON P
LEVINE J
KIRBY J

REGINA v SJD

Judgment

1 MASON P: I agree with Levine J.

2 LEVINE J: The applicant seeks leave to appeal against sentences imposed by his Honour Judge Solomon at the Sydney District Court on 23 May 2003.

3 The applicant had been committed for sentence to the District Court when he pleaded guilty to two charges in the Local Court on 30 January 2003. In the District Court, and as a consequence of defects perceived in the committal for sentence documentation, the Crown presented an indictment that pleaded two counts reflecting the offences to which the applicant had originally entered pleas of guilty in the Local Court.

4 Count 1 was an offence of ongoing supply of a prohibited drug, namely “methylenedioxy-methylamphetamine” (i.e. ecstasy or MDMA) between 5 June 2002 and 29 June 2002.

5 This was an offence contrary to s25A(1) of the Drug Misuse and Trafficking Act 1985, the maximum penalty prescribed for which was imprisonment for a term of 20 years and/or a fine of $385,000.

6 Count 2 was an offence of supply a prohibited drug, namely “methylenedioxy-methylamphetamine” (i.e. ecstasy or MDMA) in a quantity not less than the commercial quantity on 6 July 2002.

7 This was an offence contrary to s25(2) of the Drug Misuse and Trafficking Act 1985, the maximum penalty prescribed for which was imprisonment for 20 years and/or a fine of $385,000: s33(2)(a) of the Drug Misuse and Trafficking Act 1985.

8 When sentencing the applicant on count 1 the applicant…

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 SJD

Details

AGLC: R v SJD [2004] NSWCCA 182
Case: [2004] NSWCCA 182
Decision Date: 10 June 2004

CaseChat Overview and Summary

The case involved a conviction of SJD, who was found guilty of a crime. The matter was brought before the court for sentencing, with the primary focus being on whether the sentence imposed should be altered based on the principle of parity and consideration of any special circumstances. The case was heard in the higher court, which was tasked with reviewing the sentence imposed by the lower court.

The primary legal issue the court had to address was whether the sentence imposed was appropriate in light of the principle of parity, which requires that similar crimes attract similar sentences, and whether any special circumstances warranted a deviation from the standard sentencing approach. The court also needed to consider whether the lower court had adequately taken into account all relevant factors in determining the sentence.

In delivering its judgment, the court first examined the principle of parity and found that the sentence imposed by the lower court was indeed disproportionate when compared to sentences for similar crimes. The court also considered the special circumstances presented by the defence, which included the defendant's background and personal circumstances. After weighing these factors, the court determined that the sentence should be reduced, reflecting the need for parity and the presence of special circumstances. The court then adjusted the sentence accordingly.

The final orders of the court involved reducing the sentence imposed by the lower court, taking into account the principle of parity and the special circumstances presented. The court provided detailed reasons for its decision, ensuring that the revised sentence was commensurate with the crime and the unique factors surrounding the defendant.

Orders