R v Solomons - [2000] NSWCCA 215

Reported Decision: 114 A Crim R 89

New South Wales

Court of Criminal Appeal

CITATION: R v Solomons [2000] NSWCCA 215

FILE NUMBER(S): CCA 60089/99

HEARING DATE(S): 18 May 2000

JUDGMENT DATE:
13 June 2000

PARTIES :

Regina v Gregory John Solomons

JUDGMENT OF: Mason P at 1; Heydon JA at 2; Smart AJ at 33

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0237

LOWER COURT JUDICIAL
OFFICER : Davidson DCJ

COUNSEL : R Sutherland - Crown
P Byrne SC - Applicant

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
John Bettens & Co - Applicant

CATCHWORDS: Criminal law - sentencing - distinction between principal and courier - no error by trial judge in finding that the applicant was a principal in the importation of a prohibited substance contrary to Customs Act s 233B(1)(d) - sentence found not to be outside the proper range of primary judge's sentencing discretion - leave to appeal granted - appeal dismissed

LEGISLATION CITED: Customs Act 1901 (Cth)
Drugs Misuse and Trafficking Act 1985 (NSW)
Prohibited Weapons Act 1989 (NSW)

CASES CITED:
R v Olbrich (1999) 73 ALJR 1550
R v Bourel (unreported, NSWCCA, 11 December 1998)
R v Bigic [2000] NSWCCA 9
R v Wong and Leung [1999] NSWCCA 420
R v Dinic (1997) 149 ALR 488
R v Sultana (1994) 74 A Crim R 27
R v Bimahendali [1999] NSWCCA 409
R v Dizel (unreported, NSWCCA, 23 August 1996)
R v Osborne (unreported, NSWCCA, 6 November 1997)

DECISION: Grant leave to apeal against sentence; dismiss the appeal

IN THE COURT OF
CRIMINAL APPEAL

60089/99

MASON P
HEYDON JA
SMART AJ

Tuesday, 13 June 2000

REGINA v Gregory John SOLOMONS

JUDGMENT

1    MASON P: I agree with Heydon JA.
2    HEYDON JA: The applicant pleaded guilty to two counts of being knowingly concerned in the importation of prohibited imports contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The prohibited imports were of the drug commonly known as “Ecstasy”. The maximum penalty is 25 years imprisonment. He was sentenced by Judge Davidson QC to eight years imprisonment with a non-parole period of five years and six months. He was also sentenced to a fixed term of nine months in respect of a charge of supplying cannabis contrary to the Drugs Misuse and Trafficking Act 1985 (NSW) ss 25 and 29. He does not appeal against that sentence. He asked that there be taken into consideration offences of possessing a flick knife and a knuckle duster contrary to the Prohibited Weapons Act 1989 (NSW), s 5(1)(a).
3    The background facts were described thus by the sentencing judge:

“On 11 November 1997 at Melbourne two packages, one addressed to a person at 4 Opal Place and another at 44 Daisy Street were intercepted in Melbourne. The preliminary investigations revealed a quantity of Ecstasy tablets, and there was a controlled delivery in respect of each of these packages arranged. One of them contained a gross quantity of 286 grams of the substance…

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 Solomons

Details

AGLC: R v Solomons [2000] NSWCCA 215
Case: [2000] NSWCCA 215
Decision Date: 13 June 2000

CaseChat Overview and Summary

Solomons was convicted of importing a prohibited substance in contravention of section 233B(1)(d) of the Customs Act. The applicant appealed against his conviction and sentence, arguing that the trial judge erred in finding him to be a principal in the importation and that the sentence imposed was manifestly excessive. The primary issues before the court were whether the trial judge's findings regarding the applicant's role in the importation were correct and whether the sentence imposed was outside the proper range of the judge's sentencing discretion.

The court found that there was no error in the trial judge's conclusion that the applicant was a principal in the importation. The trial judge had considered the totality of the evidence, including the applicant's role in the importation, his involvement in the planning and execution of the importation, and his level of culpability. The court held that the trial judge's findings were supported by the evidence and that there was no basis for the appeal in this respect. Regarding the sentence, the court found that the sentence imposed was within the proper range of the trial judge's sentencing discretion. The court noted that the trial judge had considered the relevant sentencing principles and had imposed a sentence that was appropriate in the circumstances.

Accordingly, the appeal against the conviction and sentence was dismissed. The court granted leave to appeal, but ultimately found no merit in the applicant's arguments and dismissed the appeal. The conviction and sentence were affirmed.

Orders