Radi v R

Case [2013] NSWCCA 278 14 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Radi v R [2013] NSWCCA 278
Hearing dates: 25 October 2013
Decision date: 14 November 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [36]
Latham J at [37]
Decision:
Application for extension of time by the applicant dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - supplying a commercial quantity of a prohibited drug - applicant sentenced in June 2009 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - importance of principle of finality - "Muldrock error" established - whether substantial injustice would result if an extension of time were refused - application of s6(3) Criminal Appeal Act 1912 - re-exercise of sentencing discretion by Court of Criminal Appeal - no lesser sentence warranted in law - application for extension of time dismissed.
Legislation Cited: Criminal Appeal Act 1912 (NSW) - s6(3)
Drug Misuse and Trafficking Act 1985 (NSW) - s25(2)
Cases Cited: Abdul v R [2013] NSWCCA 247
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Douar v R [2005] NSWCCA 455;159 A Crim R 154
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Niketic [2002] NSWCCA 425
Radi v R [2010] NSWCCA 265
Vandeventer v R [2013] NSWCCA 33
Category: Principal judgment
Parties: Vasil Radi - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr E Ozen - Applicant
Ms M Cinque - Respondent Crown
Solicitors:
S O'Connor - Legal Aid NSW - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2008/00989
Decision under appeal

Date of Decision:

2009-06-23 00:00:00

Before:

Sorby DCJ

File Number(s):

2008/00989

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was found guilty following trial by a jury of one offence of supplying a commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of imprisonment for 20 years with a standard non-parole period of 10 years.

On 23 June 2009 Sorby DCJ sentenced the applicant to imprisonment with a non-parole period of 7 years, and a balance of term of 3 years. The earliest date on which the applicant is eligible for release on parole is 23 April 2014, i.e. in approximately 5½ months.

The applicant seeks an extension of time within which to apply for leave to appeal against the severity of that sentence. The applicant relies upon a single ground of appeal:

Ground of Appeal: The sentencing judge erred in his approach to the standard non-parole period legislation in light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

It was common ground between the applicant and the Crown that "

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 Radi v R

Details

AGLC: Radi v R [2013] NSWCCA 278
Case: [2013] NSWCCA 278
Decision Date: 14 November 2013

CaseChat Overview and Summary

The applicant, Radi, sought an extension of time to appeal against a sentence imposed in June 2009 for supplying a commercial quantity of a prohibited drug. The matter was heard in the Court of Criminal Appeal, which was required to determine whether the applicant was entitled to an extension of time for leave to appeal on account of a significant legal error identified in Muldrock v The Queen. This case raised questions about the finality of legal decisions and the potential for injustice if an extension of time was refused.

The legal issues before the court involved the application of section 6(3) of the Criminal Appeal Act 1912, which allows for an extension of time where it is just and equitable to do so. The court had to assess whether the principles of finality and the potential for injustice warranted an extension of time in this instance, given that the error in question had been established in Muldrock v The Queen. The court also needed to consider whether, if an extension of time were granted, a lesser sentence would be warranted in law.

In its reasoning, the court recognised that the decision in Muldrock v The Queen constituted a significant legal error, but emphasised the importance of the principle of finality. The court acknowledged that while the "Muldrock error" warranted consideration for an extension of time, it was not sufficient to establish substantial injustice on its own. The court held that it was not just and equitable to grant an extension of time, as a lesser sentence was not warranted in law. Consequently, the application for an extension of time was dismissed.

The final orders of the court were that the application for an extension of time to appeal against sentence was dismissed. The court re-exercised its sentencing discretion, determining that the sentence originally imposed was appropriate and that no lesser sentence was warranted in law. The decision underscored the court's commitment to upholding the principle of finality while also ensuring that significant legal errors are appropriately addressed.

Orders