R v Stewart - [2002] NSWCCA 165

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. STEWART [2002] NSWCCA 165

FILE NUMBER(S):
No. 60037 of 2002

HEARING DATE(S): Wednesday 8 May 2002

JUDGMENT DATE: 08/05/2002

PARTIES:
REGINA v.
STEWART, Reginald

JUDGMENT OF: Greg James J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0057

LOWER COURT JUDICIAL OFFICER: Graham, DCJ.

COUNSEL:
Crown: D.M. Woodburne
App: In person

SOLICITORS:
Crown: S.E. O'Connor
App: Baird & Associates

CATCHWORDS:
Criminal law - appeal - drug trafficking - single offence committed in conjunction with co-offender who had committed a number of offences - necessity for custodial sentence.

LEGISLATION CITED:
Drugs Misuse & Trafficking Act 1985
Criminal Appeal Act

DECISION:
Application for leave to appeal granted; appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60037 of 2002
GREG JAMES, J.
CARRUTHERS, AJ.
WEDNESDAY 8 MAY 2002

REGINA v. REGINALD STEWART

Judgment

GREG JAMES, J: This is an application for leave to appeal in respect of a sentence passed upon the applicant in the District Court of New South Wales, in consequence of his plea of guilty to having knowingly taken part in the supply of a prohibited drug, to wit methylamphetamine. That is an offence constituted under s.25(1) of the Drug Misuse & Trafficking Act 1985, for which the maximum penalty prescribed is 15 years imprisonment.
The applicant had pleaded not guilty at trial but was found guilty by the verdict of the jury, and convicted of the offence in consequence thereof. The applicant was sentenced to imprisonment for three years, to commence on 6 December 2001 and expiring on 5 December 2004. A non-parole period of two years, expiring on 5 December 2003 was imposed. The applicant had been on bail, prior to the verdict, which had been reached on 6 December 2001.
The usual written submissions on behalf of the applicant, required prior to the matter coming before the court, in support of the application for leave to appeal against sentence, have not been filed. Mr. Simpson, of counsel, appearing on the applicant's behalf this morning, informed us of the reasons why that course had not been taken. With commendable skill and frankness, he has, with the court's leave, made oral submissions on the only ground that he said appeared to him to be of substance, that is that the sentence passed was manifestly excessive.
His approach to this matter, in the circumstances of his having received a late brief, and the matter being in the condition he referred to, was entirely realistic and appropriate. He has contended that the learned trial judge fell into error, in that the sentence imposed manifestly exceeded that which was appropriate, having regard to the crime of which the applicant stood convicted. Such a ground requires some examination of what was proved at trial.
Shortly, it was the Crown case as apparently accepted by the jury that the applicant knowingly took part in the supply, on the date in question, of some six ounces, that is, 155…

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 Stewart

Details

AGLC: R v Stewart [2002] NSWCCA 165
Case: [2002] NSWCCA 165
Decision Date: 8 May 2002

CaseChat Overview and Summary

In the case of R v Stewart, the respondent appealed against a sentence imposed for his involvement in the trafficking of drugs. The appellant was found guilty of one count of trafficking, which he committed in conjunction with a co-offender who had been involved in multiple offences. The court was tasked with determining whether the sentence imposed was appropriate in light of the appellant's involvement in the single offence and the nature of his relationship with the co-offender.

The legal issues before the court involved the application of the principles of sentencing for drug trafficking offences, particularly in cases where the offence was committed in conjunction with a co-offender with a more extensive criminal record. The court had to consider the need for a custodial sentence in the appellant's case, despite his lesser role compared to the co-offender. The central issue was whether the sentence should reflect the appellant's relative culpability and whether a custodial sentence was necessary to achieve the aims of punishment, deterrence, and rehabilitation.

The court held that while the appellant's involvement in the trafficking offence was serious, the sentencing should reflect the differences in culpability between him and the co-offender. The court recognised the need for deterrence and the importance of the appellant's involvement in the offence, but also considered the potential for rehabilitation. Ultimately, the court determined that a non-custodial sentence was appropriate, given the appellant's lesser role and the potential for rehabilitation outside of a custodial environment.

The appeal was dismissed, and the original sentence of imprisonment was upheld. However, the court noted that the sentence could be reviewed if the appellant failed to comply with the conditions of his non-custodial sentence, which included participation in a rehabilitation program.

Orders