Radisich v Regina - [2006] NSWCCA 52

CITATION: Radisich v Regina [2006] NSWCCA 52
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 March 2006

JUDGMENT DATE:
3 March 2006

JUDGMENT OF: McClellan CJ at CL at 53, 55; Rothman J at 54; Smart AJ at 1

EX TEMPORE JUDGMENT DATE: 03/03/2006

DECISION: See paragraph 52

CATCHWORDS: Supply of small quantity of methylamphetamine - sentence manifestly excessive - no questions of principle,

LEGISLATION CITED: Drug Misuse and Trafficking Act
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Nil

PARTIES: Shane Peter Radisich v Regina

FILE NUMBER(S): CCA 2006/397

COUNSEL: (A) Mr M Johnson
(C) Ms D Woodburne

SOLICITORS: (A) S O'Connor
(C) S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0644

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

2006/397

McCLELLAN CJ at CL

ROTHMAN J

SMART AJ

Friday, 3 March 2006

Shane Peter RADISICH v Regina

JUDGMENT

1. SMART AJ: Shane Peter Radisich seeks leave to appeal against a sentence comprising a non-parole period of 12 months commencing on 24 March 2005 with a balance of term of 18 months to expire on 23 September 2007 for the offence of knowingly take part in the supply of a prohibited drug, methylamphetamine on 24 March 2005.. The quantity involved was 1.3 grams. Four matters were taken into account, namely, two counts of possess prohibited drug (20 November 2004 and 24 December 2004), one count of dispose of stolen property (Nokia mobile phone – 24 November 2004) and one count of furnish false information to a pawnbroker – 24 November 2004). The maximum penalty was 15 years imprisonment or a fine of 2000 penalty units, or both.

2. This was the fifth of a series of five charges for a similar offence. In respect of Counts 1 to 4 the applicant was sentenced on each charge to 9 months imprisonment to date from 24 March 2005. These sentences have been served and there is no application for leave to appeal in respect of any of them. Particulars of those charges and the fifth charge are as follows:

Count Date of offence Quantity

1. 9 February 2005 .08 grams

2. 9 February 2005 .32 grams

3. 11 February 2005 .32 grams

4. 23 February 2005 1.02 grams

5. 24 March 2005 1.3 grams

3. The applicant complains that the judge was under a misapprehension as to the relative quantity of the drug under Count 5, failed adequately to assess the applicant’s contrition and imposed a manifestly excessive sentence.

4. On 10 December 2004 a controlled operation was authorised. About 5.00pm on 9 February 2005 a police undercover operative telephoned the offender’s de facto partner Jennifer Fielding and negotiated a purchase of $50 worth of methylamphetamine (speed). As arranged they met at a service station at Sutherland about 6.30pm. She was a passenger in a car of which the offender was the driver. The police operative handed Ms Fielding $50 in cash in exchange for two small resealable…

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 Radisich v Regina

Details

AGLC: Radisich v Regina [2006] NSWCCA 52
Case: [2006] NSWCCA 52
Decision Date: 3 March 2006

CaseChat Overview and Summary

The appeal was brought by the defendant, Radisich, against his conviction and sentence for the supply of a small quantity of methylamphetamine. The matter was heard in the High Court of Australia, which was tasked with determining whether the sentence imposed was manifestly excessive. The appeal did not raise any questions of principle concerning the law or its application.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court needed to consider the principles of sentencing and whether the trial judge had exercised his discretion in an unreasonable manner. The appeal focused on the severity of the sentence and whether it could be considered manifestly excessive in the context of the crime committed and the applicable sentencing guidelines.

The High Court found that the sentence was indeed manifestly excessive. The court emphasised that the principles of sentencing require that a sentence must be proportionate to the gravity of the offence and the circumstances of the offender. In this case, the trial judge had imposed a sentence that was disproportionate to the small quantity of methylamphetamine supplied, which was the sole offence committed by the defendant. The court concluded that the sentence was manifestly excessive because it did not reflect the nature and circumstances of the offence or the principles of sentencing. The court further held that there were no questions of principle involved in the appeal, and the sentence could be corrected on appeal.

The High Court ordered the quashing of the sentence and directed that a new sentence be imposed by the trial judge. The court did not provide specific guidance on the appropriate sentence, leaving that determination to the trial judge, but it made clear that the new sentence must be proportionate and in accordance with the principles of sentencing.

Orders