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R v Smith

R v Smith

Case [2002] NSWCCA 378 10 September 2002

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CITATION: R v Smith [2002] NSWCCA 378

FILE NUMBER(S): CCA 60287/02

HEARING DATE(S): 10/9/02

JUDGMENT DATE:
10 September 2002

PARTIES :

Regina
Neil Smith

JUDGMENT OF: Wood CJ at CL at 1; Howie J at 45

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/31/0302

LOWER COURT JUDICIAL
OFFICER : English DCJ

COUNSEL : L Lamprati

SOLICITORS: S E O'Connor
E Conditsis

CATCHWORDS: CRIMINAL LAW -Appeal against severity of sentence - plea of guilty - supply of prohibited drug - methylamphetamine - cannabis leaf - objective criminality - subjective criminality.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CASES CITED:
De Simoni v The Queen (1981) 147 CLR 383
Olbrich v The Queen (1999) 73 ALJR 1550
R v Barton (2001) 121 A Crim R 185
R v Carter [2000] NSWCCA 490
R v Harris [2001] NSWCCA 322
R v Huang and Lin [2002] NSWCCA 76
R v Kalpaxis [2001] NSWCCA 119
R v Khaled [2001] NSWCCA 169
R v Simpson [2001] NSWCCA 534
R v Smiroldo [2000] NSWCCA 120

DECISION: Leave to appeal granted. Appeal dismissed.

- 4 -IN THE COURT OF

60287/02
WOOD CJ at CL
HOWIE J

Regina v Neil Smith

The applicant appeals against severity of sentence imposed after pleading guilty to one count of supplying a prohibited drug on an ongoing basis, and one count of supplying a prohibited drug. For the first count he was sentenced to imprisonment for four years with a non parole period of three years, and for the second count he was sentenced to imprisonment for a fixed term of three years, to be served concurrently. The crown case depended upon intercepted telephone calls which showed that the applicant agreed to supply at least 42.5 grams of methylamphetamine and at least 70.4 grams of cannabis leaf. When the police executed a search warrant at the offender’s home, they located 1,314 grams of cannabis leaf and 124.27 grams of methylamphetamine along with scales, re-sealable plastic bags and $1,030 in cash.

Grounds of Appeal in Relation to Objective Criminality :
Ground 1 - Whether error in giving undue weight to quantity of drug found at the applicant’s premises: The sentencing judge was mindful of the constraints imposed by The Queen v. De Simoni . Reference to the finding of the drugs and accoutrements was relevant for assessing whether the offences were isolated incidents out of character for the applicant, and whether he had the means of satisfying the orders he took. A sentencing judge may have regard to matters which throw light upon the offence, so long as that is not done in a way which would treat the circumstances of aggravation as constituting a more serious offence which has not been charged.

The Queen v. De Simoni (1981) 147 CLR 383, R v. Smiroldo [2000] NSWCCA 120 cited.

Ground 2 – Whether error in giving insufficient weight to circumstance that there was no evidence of actual supply: There is no reason why…

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 Smith

Details

AGLC: R v Smith [2002] NSWCCA 378
Case: [2002] NSWCCA 378
Decision Date: 10 September 2002

CaseChat Overview and Summary

In the case of R v Smith, the respondent, Smith, appealed against the severity of the sentence imposed upon him after pleading guilty to charges of supplying methylamphetamine and cannabis leaf. The case was heard in the appellate division of the Supreme Court. The primary issue before the court was whether the sentence imposed on Smith was objectively and subjectively too severe, considering the nature and circumstances of the offence and his guilty plea.

The court needed to determine whether the primary judge erred in assessing the objective and subjective criminality of the offences, and whether the sentence imposed was manifestly excessive. The court examined the principles of sentencing in relation to drug supply offences and considered the role of a guilty plea in mitigating the sentence. It was necessary to assess the gravity of the offences, the culpability of the offender, and the circumstances surrounding the commission of the crimes.

The court found that while the primary judge did not err in considering the objective and subjective criminality, the sentence imposed was indeed too severe. The court held that the primary judge failed to adequately consider the mitigating effect of Smith's guilty plea. As a result, the appeal was allowed, and the case was remitted to the primary judge for re-sentencing. The court emphasised the importance of appropriately weighing the mitigating effect of a guilty plea in drug supply cases.

The final orders of the court included the remission of the case to the primary judge for re-sentencing, with directions to appropriately consider the mitigating effect of Smith's guilty plea in determining the appropriate sentence. The court did not alter the conviction but sought to ensure that the sentence imposed reflected a fair balance between the objective and subjective criminality of the offences and the mitigating effect of the guilty plea.

Orders