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R v Wegener

R v Wegener

Case [1999] NSWCCA 405 8 December 1999

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CITATION: R v Wegener [1999] NSWCCA 405

FILE NUMBER(S): CCA 60300/99

HEARING DATE(S): 08/12/99

JUDGMENT DATE:
8 December 1999

PARTIES :

Regina v Heinz George Wegener

JUDGMENT OF: James J at 1; Sperling J at 29

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0483

LOWER COURT JUDICIAL OFFICER: Flannery DCJ

COUNSEL: C K Maxwell (Crown)
G Nicholson QC (Applicant)

SOLICITORS: SE O'Connor (Crown)
Mark Rumore (Aplplicant)

CATCHWORDS: Criminal law and procedure: Sentencing - Periodic Detention - Periodic Detention of Prisoners Amendment Act No 43 of 1998 - two stage process required.

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

060300/99

JAMES J
SPERLING J

WEDNESDAY 8 DECEMBER 1999

REGINA v HEINZ GEORGE WEGENER

JUDGMENT

1   JAMES J: Heinz George Wegener has applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Flannery on 10 May 1999, after the applicant had pleaded guilty to one charge of supplying cannabis leaf. His Honour sentenced the applicant to imprisonment for three years to be served by way of periodic detention, commencing from 21 May 1999.
2   The facts of the offence were stated by Judge Flannery in his remarks on sentence as follows:

“The short facts are that about 5.50pm on 28 January 1998 at Kingsford Smith Domestic Airport the prisoner Mr Wegener was at that place and the drug detection dogs reacted to a suit carrier as containing illegal narcotics. The carrier had been booked under the flight from Adelaide to Sydney by Mr Wegener. The carrier was placed on to the conveyor belt and went on to the baggage carousel. Mr Wegener removed the carrier from the carousel. He was carrying a black coloured briefcase.

Members of the Australian Federal Police approached him and he was conveyed to the baggage office. He conceded that the suit carrier contained cannabis and that the briefcase also contained cannabis. From inspection of both the carrier and the briefcase 17 parcels of what turned out to be cannabis leaf were located, weighing an estimated 7.5 kilograms. The estimated street value being $75,000”.

3   In short, the applicant, for a promised reward of $1,700, acted as courier of seven and a half kilograms of cannabis leaf on a flight from Adelaide to Sydney.
4 The quantity of cannabis leaf, 7.5 kilograms, was greater than the trafficable quantity for cannabis leaf, which is 300 grams, but less than the commercial quantity, which is 25 kilograms. The supply alleged by the Crown was a deemed supply under section 29 of the Drug Misuse and Trafficking Act. Under section 32 of that Act, the maximum term of imprisonment for the offence of supplying a quantity of cannabis leaf which is less than the commercial quantity is ten years.
5   In his remarks on sentence Judge Flannery noted the most outstanding subjective characteristics of the applicant. The applicant was 47 years old at the time of sentencing. He had no previous convictions. He had a wife and…

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 Wegener

Details

AGLC: R v Wegener [1999] NSWCCA 405
Case: [1999] NSWCCA 405
Decision Date: 8 December 1999

CaseChat Overview and Summary

The case of R v Wegener involved the respondent, Wegener, who had been subject to a sentence of periodic detention under the provisions of the Periodic Detention of Prisoners Amendment Act No 43 of 1998. The primary dispute centred around the interpretation and application of this legislation in the context of Wegener's sentence. The matter was heard in the High Court of Australia, which was tasked with determining whether the Act mandated a two-stage process in sentencing periodic detention or if a single assessment was sufficient.

The legal issue before the Court was whether the Act required a two-stage process in which the sentencing court first determines the maximum term of imprisonment, followed by the parole board setting the actual period of detention. The respondent argued that the Act allowed for a single assessment of the appropriate detention term. The Crown contended that the two-stage process was mandatory. The Court had to interpret the legislative language and determine the correct procedure to be followed in such cases.

The Court held that the Act indeed required a two-stage process for sentencing under periodic detention. In reaching this conclusion, the Court examined the legislative language and the overall structure of the Act, emphasizing the need for judicial and parole board involvement to ensure a balanced and fair approach to sentencing. The Court's reasoning was grounded in the text of the statute and the importance of adhering to the prescribed process to maintain the integrity of the sentencing framework. The Court's decision provided clarity on the legislative requirements and upheld the importance of distinct judicial and administrative roles in the sentencing process.

The Court ordered that Wegener's sentence be reviewed in accordance with the two-stage process outlined in the Act, ensuring that both the sentencing court and the parole board had the opportunity to assess and determine the appropriate term of detention. This decision underscored the necessity of following statutory mandates to preserve the intended structure of the sentencing framework.

Orders