R v Tirtabudi - [2004] NSWCCA 328

CITATION: R v Tirtabudi [2004] NSWCCA 328

HEARING DATE(S): 21/09/04

JUDGMENT DATE:
21 September 2004

JUDGMENT OF: Wood CJ at CL at 18, 19, 21; Buddin J at 20; Shaw J at 1

DECISION: 1. Leave to appeal be granted. 2. The appeal be dismissed.

CATCHWORDS: Application for leave to appeal against severity of sentence - whether sentences on both counts were "manifestly excessive" - addiction - supply offences arose out of applicant's need to finance own drug use - sale of drugs to friends for relatively modest profit - not entrepreneurial or cynical drug supplier - applicant on bail at time - significant aggravating feature - whether "special circumstances" - head sentence. - non parole period.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) s44
Drug Misuse and Trafficking Act 1985 ss 25, 29

PARTIES :
Regina
Alvin Tirtabudi

FILE NUMBER(S): CCA 2004/1834 CCAP (603174/04)

COUNSEL: P Boulton SC (Applicant)
D M L Woodburne (Crown - Respondent)

SOLICITORS: Ford Criminal Lawyers (Applicant)
S Kavanagh (Crown - Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0329

LOWER COURT
JUDICIAL OFFICER : Latham DCJ

- 3 -

2004/1834 CCAP (603174/04)

WOOD CJ at CL
BUDDIN J
SHAW J

REGINA v ALVIN TIRTABUDI

Judgment

1 SHAW J: This is an application for leave to appeal against the sentences imposed by Latham DCJ upon the applicant, following pleas of guilty.

2 There were two substantive charges, both relating to the supply of a prohibited drug. The precise charges were as follows.

Count 1
Supply a prohibited drug (4.56 grams of 3, 4 - methylenedioxymethylamphetamine). (d.o.o. 18.12. 01) s 25 & s 29 Drug Misuse and Trafficking Act 1985
Maximum Penalty: Imprisonment 15 years

Drug Misuse and Trafficking Act

3 In addition, there were four Form 1 offences which were also appropriately taken into account in imposing the sentence, including custody of a knife in a public place; and three offences of possessing a prohibited drug, respectively, amphetamine, methylamphetamine and MDMA.

4 The maximum penalty prescribed by the legislature was fifteen years in respect of each count. The sentence determined by her Honour was, in relation to count 1, taking into account the Form 1 offences, imprisonment for two years to date from 26 September 2003 and to expire on 25 November 2005. A non-parole period of eighteen months was set to expire on 25 May 2005.

5 The sentence in relation to count 2 was imprisonment for three years, to date from 26 May 2004 and expire on 25 May 2007. A non-parole period of fourteen months was set to expire on 25 July 2005.

6 An order was also made that the drugs be destroyed.

7 It appears that the applicant had no prior offences recorded against him.

8 There are two grounds of appeal:…

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 Tirtabudi

Details

AGLC: R v Tirtabudi [2004] NSWCCA 328
Case: [2004] NSWCCA 328
Decision Date: 21 September 2004

CaseChat Overview and Summary

In the case of R v Tirtabudi, the appellant sought leave to appeal against the severity of sentences imposed for drug supply offences. The applicant had been convicted on two counts and was appealing the harshness of the sentences imposed. The court was tasked with determining whether the sentences were manifestly excessive, considering the applicant's addiction and the fact that the supply offences arose from the need to finance his own drug use. The applicant had sold drugs to friends for relatively modest profit and was not considered an entrepreneurial or cynical drug supplier. The court also needed to consider whether there were special circumstances that warranted a different sentence, such as the applicant being on bail at the time of sentencing. Additionally, the court was required to evaluate the head sentence and non-parole period.

The court examined the nature of the applicant's drug use, his role in the drug supply chain, and the circumstances surrounding the offences. The court acknowledged the applicant's addiction but also noted that the supply offences were serious and warranted punishment. The court found that the sentences were not manifestly excessive, as they took into account the applicant's personal circumstances and the need to deter drug supply offences. The court also considered the significant aggravating feature of the applicant being on bail at the time of sentencing. The court concluded that the sentences were appropriate and did not warrant special circumstances.

The court denied the applicant's application for leave to appeal against the severity of the sentences. The court found that the sentences were proportionate to the seriousness of the offences and took into account the applicant's personal circumstances. The court also noted that the sentences were consistent with other cases involving drug supply offences. The court did not find any special circumstances that would warrant a different sentence. The applicant's appeal against the severity of the sentences was dismissed, and the original sentences stood.

Orders