CITATION: Regina v Alexander [2000] NSWCCA 458 revised - 3/11/2000

FILE NUMBER(S): CCA 60176/00

HEARING DATE(S): 27/10/00

JUDGMENT DATE:
27 October 2000

PARTIES :

Regina v John Alexander

JUDGMENT OF: Whealy J at 1

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S) : 99/0038

LOWER COURT JUDICIAL
OFFICER : Judge Milson

COUNSEL : Ms P. Hock - Crown
H. Dhanji - Appellant

SOLICITORS: S. E. O'Connor - DPP
D. J. Humphreys - Appellant

LEGISLATION CITED: Criminal Appeal Act 1912
Supreme Court Act
Drug Court Act 1998

CASES CITED:
Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 692
The Queen v McCrea (2000) NSWCCA 300
The Queen v WHS (NSWCCA 27 March 1995)
R v Leon (NSWCCA 30 November 1994 unreported)
Histollo Pty Ltd v The Director General of National Parks & Wildlife Services (1998) 45 NSWLR 661
The Queen v Fahda (1999) NSWCCA 67
R v Sconamiglio (1991) 56 A Crim R 81
R v Letteri (NSWCCA 18 March 1992, unreported)
R v Engert (1995) 84 A Crim R 68
R v Mooney (Victoria 1 June 1978 (unreported)
The Queen v Henry Vol 46 NSWLR at 394

DECISION: I make orders as follows: ; 1. I set aside the sentence of Milson DCJ of the Drug Court of New South Wales passed on 24 February 2000 in relation to the break, enter and steal offence committed at Paddington on 23 June 1999.; 2. In relation to that charge, I re-sentence the appellant to a term of imprisonment of 8 months commencing on 23 September 2000 with a non parole period of 3 months. I order that the appellant be released on parole on 22 December 2000.

IN THE COURT OF

CRIMINAL APPEAL

60176/00

WHEALY J

FRIDAY 27 October 2000

REGINA v John ALEXANDER

JUDGMENT

1 HIS HONOUR: This is an appeal under s 5AF of the Criminal Appeal Act 1912. The nature of the appeal is that it is an appeal from sentence imposed by the Drug Court of New South Wales. 2 The Drug Court Act 1998 received assent upon 8 December 1998 and came into force (as to Part 3) on 11 December 1998 and as to the remainder on 5 February 1999. The stated object of the Drug Court Act is "to reduce the level of criminal activity that results from drug dependency". Section 6 of the Act enables Courts to refer an alleged offender to the Drug Court. Section 7(2) enables the Drug Court to convict and sentence a person who has pleaded guilty to the offence for which the person has been referred if, and only if, it is satisfied of five nominated conditions. In broad terms, the person must be an eligible person and it must be appropriate for that person to participate in a programme under the Drug Court Act 1998. The scheme of the Act is that an order is then…

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 Regina v Alexander

Details

AGLC: Regina v Alexander [2000] NSWCCA 458
Case: [2000] NSWCCA 458
Decision Date: 27 October 2000

CaseChat Overview and Summary

In Regina v Alexander, the New South Wales Court of Criminal Appeal was asked to review the sentence imposed by the Drug Court of New South Wales on the appellant, John Alexander, for a break, enter and steal offence. The Drug Court had imposed a sentence of fifteen months, which was suspended to allow Alexander to participate in a drug rehabilitation programme. However, Alexander did not adhere to the programme and subsequently committed another offence, leading to a resentencing by the Drug Court. Alexander appealed the resentencing, arguing that his mental health issues and substance abuse should have been considered more heavily in determining his sentence. The Court of Criminal Appeal agreed and re-sentenced Alexander to a term of imprisonment of eight months with a non-parole period of three months.

The Court of Criminal Appeal considered the nature of the appeal, which was an appeal from sentence imposed by the Drug Court. The court noted that the Drug Court Act 1998 aimed to reduce criminal activity resulting from drug dependency and that the Drug Court had the power to refer alleged offenders to the court, convict and sentence them, and impose conditions on them. The court also noted that the appeal was by way of re-hearing on the evidence, and the Court of Criminal Appeal had the power to confirm, vacate, or make any determination that the Drug Court could have made.

The court considered the evidence presented by Alexander, including a psychiatric report and an affidavit from Alexander himself. The report revealed that Alexander was suffering from a paranoid schizophrenic illness and substance and alcohol abuse, which had affected his ability to participate in the Drug Court programme. The court noted that Alexander's mental health issues and substance abuse were highly relevant to the sentence that should be imposed on him, and that general deterrence should be given less weight in the case of an offender suffering from a mental disorder or abnormality.

Based on the evidence and submissions presented, the Court of Criminal Appeal set aside the sentence imposed by the Drug Court and re-sentenced Alexander to a term of imprisonment of eight months with a non-parole period of three months. The court noted that the sentence remained a cumulative one, which was necessary to recognise the undesirability of persons on the drug programme re-offending during the treatment term. The court also noted that the objective seriousness of the break, enter and steal charge was towards the bottom end of the scale, and that Alexander's mental illness did not make him a satisfactory vehicle for a statement of general deterrence.

Orders