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RCW v R (No 2)

RCW v R (No 2)

Case [2014] NSWCCA 190 24 September 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: RCW v R (No 2) [2014] NSWCCA 190
Hearing dates: 28 July 2014
Decision date: 24 September 2014
Before: Bathurst CJ at [1];
Adams J at [2];
R A Hulme J at [8]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. The sentence imposed in the District Court is quashed and the appellant is sentenced to imprisonment for 2 years dating from 14 July 2013. The Court directs that on 14 July 2014 the appellant be released upon entering into a recognizance to be of good behaviour for 1 year until 13 July 2015 upon giving security without surety in the sum of $1.

Catchwords: CRIMINAL LAW - appeal against sentence - aid and abet attempted importation of commercial quantity of border controlled drug - issue of criminal liability after reporting offence to police - error in placing undue weight on sentences imposed in other importation cases - single case erroneously given determinative significance - no instinctive synthesis - purposes of sentencing not properly accounted for
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)
Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 305 ALR 323
Chan, Lo and Nguyen v R [2010] NSWCCA 153
DBW v R [2007] NSWCCA 236
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
N v R; AP v R [2009] NSWCCA 108
R v Burns [2007] NSWCCA 228
R v Holland [2011] NSWCCA 65; 205 A Crim R 429
R v McNamara [2005] NSWCCA 195
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
R v Pham [2005] NSWCCA 94
R v Tiknius [2011] NSWCCA 215
RCW v R [2014] NSWCCA 169
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: RCW (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr Dhanji SC (Applicant)
Mr L Crowley (Crown)
Solicitors:
Legal Aid Commission NSW
Commonwealth Director of Public Prosecutions

File Number(s): 2012/271407
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-10-10 00:00:00

Before:

Ellis DCJ

File Number(s):

2012/271407

Judgment

BATHURST CJ: I agree with R A Hulme J.

ADAMS J: At the hearing of the appeal, I joined in orders that the appellant should be admitted to bail. I did so on the basis that it was clear that he should not spend further time in prison. I have had the advantage of reading the judgment of Hulme J in draft and I agree with his Honour's disposition of the grounds of appeal, for the reasons his Honour has given. However, I would prefer to approach the resentencing exercise somewhat differently, which would result in different sentence.

My starting point is the distinction to be made on the one hand between the actions of…

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 RCW v R (No 2)

Details

AGLC: RCW v R (No 2) [2014] NSWCCA 190
Case: [2014] NSWCCA 190
Decision Date: 24 September 2014

CaseChat Overview and Summary

In the case of RCW v R (No 2), the appellant stood convicted of aiding and abetting the attempted importation of a commercial quantity of a border controlled drug. The case was heard in the High Court of Australia, where the appellant challenged the sentence imposed by the trial court, arguing that it was excessive. The appellant had reported the offence to the police before it was committed, and this fact was considered during the sentencing process. However, the appellant argued that the trial court had erred in its approach to sentencing by placing undue weight on sentences imposed in other importation cases, and by erroneously giving a single case determinative significance. The appellant submitted that the trial court had failed to properly account for the purposes of sentencing.

The High Court considered the legal issues surrounding the imposition of a sentence for the crime of aiding and abetting attempted importation of a commercial quantity of a border controlled drug. The Court noted that the trial court had erred in its approach to sentencing by placing undue weight on sentences imposed in other importation cases and by giving a single case determinative significance. The Court found that the trial court had failed to properly account for the purposes of sentencing, which include deterrence, denunciation, retribution, and rehabilitation. The Court also noted that the trial court had not engaged in an instinctive synthesis of the relevant considerations, which is a fundamental aspect of the sentencing process.

After considering the arguments presented by the appellant and the Crown, the High Court allowed the appeal against sentence. The Court found that the trial court had erred in its approach to sentencing by placing undue weight on sentences imposed in other importation cases and by giving a single case determinative significance. The Court also found that the trial court had failed to properly account for the purposes of sentencing, which include deterrence, denunciation, retribution, and rehabilitation. The Court concluded that the sentence imposed by the trial court was excessive and ordered that a new sentencing hearing be conducted. The Court did not specify the appropriate sentence to be imposed, leaving that matter to the discretion of the trial court.

Orders