R v Vera - [2008] NSWCCA 33

New South Wales
Court of Criminal Appeal

CITATION: R v Claudio VERA [2008] NSWCCA 33

HEARING DATE(S): 6 February 2008

JUDGMENT DATE:
25 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Fullerton J at 3

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against inadequacy of sentence - supply prohibited drug - neither latent nor patent error found - special circumstances justified - attitude of Crown on sentence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CASES CITED: House v The King (1936) 55 CLR 499
R v Baker [2000] NSWCCA 85
R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430
R v Ceissman [2004] NSWCCA 466
R v Chad (Court of Criminal Appeal, 13 May 1997, unreported)
R v Fidow [2004] NSWCCA 172
R v MD, BM, NA, JT [2005] NSWCCA 342; (2005) 156 A Crim R 372
R v Pilley (1991) 56 A Crim R 202
R v Sharp (Court of Criminal Appeal, 23 March 1993, unreported)
R v Wall [2002] NSWCCA 42

PARTIES: The Crown (Appl)
Claudio Vera (Resp)

FILE NUMBER(S): CCA 2007/4949

COUNSEL: G Rowling (Crown/Appl)
H Dhanji (Resp)

SOLICITORS: Director of Public Prosecutions (Appl)
Nyman Gibson Stewart (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0475

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

LOWER COURT DATE OF DECISION: 28 September 2007

CCA 2007/4949

McCLELLAN CJ at CL
GROVE J
FULLERTON J
25 FEBRUARY 2008

REGINA v Claudio VERA

Judgment

1 McCLELLAN CJ at CL: I agree with Fullerton J that the Crown did not demonstrate that the sentencing judge committed any error or that this Court should intervene because of any inadequacy. For these reasons I agreed that the appeal should be dismissed.

2 GROVE J: I agree with the reasons of Fullerton J for the order dismissing the Crown appeal in which I joined on 6 February.

3 FULLERTON J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of a sentence imposed by his Honour Coorey DCJ in the District Court at Campbelltown on 28 September 2007 on a charge that on 2 February 2006 the respondent supplied a prohibited drug, namely, methylamphetamine.

4 On 6 February 2008, the Court dismissed the Crown appeal against sentence. I agreed with that order for the following reasons.

5 His Honour sentenced the respondent to a non-parole period of six months to commence from 19 September 2007 and to expire on 18 March 2008 against a total sentence of two years, also to date from 19 September 2007. The sentence was backdated to account for nine days of pre-trial custody directly referable to the offence for which he stood to be sentenced. The statutory ratio between the non-parole period and the total sentence as provided for in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 was disturbed as a result of his Honour…

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 Vera

Details

AGLC: R v Vera [2008] NSWCCA 33
Case: [2008] NSWCCA 33
Decision Date: 25 February 2008

CaseChat Overview and Summary

The appellant, Vera, was convicted of supplying a prohibited drug and was sentenced to a term of imprisonment by the County Court of Victoria. Vera appealed against the adequacy of the sentence imposed, arguing that it was excessive. The appeal was heard by the Court of Appeal, which had to determine whether the sentence was manifestly inadequate.

The court examined whether the sentence was outside the range of reasonable responses and whether it could be said to be manifestly inadequate. The court noted that the supply of prohibited drugs is a serious offence, but also considered the special circumstances of the case, including the appellant's background and the attitude of the Crown on the appropriate sentence. The court found that while the offence was serious, the sentence imposed was within the range of reasonable responses and that there was no latent or patent error in the sentencing process.

In light of the above, the Court of Appeal dismissed the appeal. The court held that the sentence imposed was not manifestly inadequate and that the special circumstances of the case justified the sentence. The court also noted the attitude of the Crown on the appropriate sentence, which supported the sentence imposed by the County Court. The appeal was dismissed and the original sentence stood.

Orders