Regina v Bacon - [2000] NSWCCA 549

Reported Decision: 120 A Crim R 28

New South Wales

Court of Criminal Appeal

CITATION: Regina v Bacon [2000] NSWCCA 549

FILE NUMBER(S): CCA 60692/2000

HEARING DATE(S): 13 December 2000

JUDGMENT DATE:
13 December 2000

PARTIES :

Crown - Respondent
Kane David BACON - Applicant

JUDGMENT OF: Simpson J at 1; Carruthers AJ at 20; Smart AJ at 66

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0363

LOWER COURT JUDICIAL
OFFICER : Howie DCJ

COUNSEL : P Hock - Crown
R Burgess - Applicant

SOLICITORS: S E O'Connor - Crown
D J Humphreys - Applicant

LEGISLATION CITED: Drugs Misuse and Trafficking Act 1985
Sentencing Act 1989
Listening Devices Act 1984
Crimes Act 1900
Drugs Misuse and Trafficking (Ongoing Dealing) Bill

DECISION: Leave to appeal allowed, appeal allowed and sentenced quashed. Applicant re-sentenced.

IN THE COURT OF
CRIMINAL APPEAL

60692/2000

SIMPSON J
CARRUTHERS J

SMART AJ

13 December 2000

REGINA v Kane David BACON

Judgment

SIMPSON J :

1 The Court is in a position to give judgment now.

On 15 October 1999 the applicant entered a plea of guilty to a charge of supplying a prohibited drug on an ongoing basis, a charge brought under the provisions of s 25A of the Drugs Misuse and Trafficking Act 1985 which carries a maximum penalty of twenty years' imprisonment. Having heard evidence, Howie DCJ (as his Honour then was) sentenced the applicant to imprisonment for three years made up of a minimum term of two years and an additional term of twelve months. In order to structure the sentence as he did, it was necessary that his Honour find special circumstances within the meaning of s 5(2) of the Sentencing Act 1989 under which he was sentencing the applicant which he did. His Honour took into account a period of pre-sentence custody of three months although only a part of this was referable to the drug charge. His Honour was also sentencing the applicant in relation to a conviction for assault occasioning actual bodily harm which had originally been dealt with in the Local Court against which the applicant had appealed to the District Court. Having confirmed the conviction, his Honour sentenced the applicant to a fixed term of imprisonment for six months and he accumulated the sentence for the drug offence. That sentence, that is the drug offence sentence, he specified to commence on 29 April 2000 at the expiration of the fixed term sentence for assault. The subject matter of this application for leave to appeal is asserted severity of the sentence imposed in relation to the drug charge. Except insofar as the sentence for assault impacts upon the sentence for the drug offence, it is of no further materiality. No appeal lies to this Court either from the conviction or the sentence imposed in relation to that offence.

2 The offence of supplying a prohibited drug on an ongoing basis was committed on three days over a period of one month (8 February, 24 February…

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 Bacon

Details

AGLC: Regina v Bacon [2000] NSWCCA 549
Case: [2000] NSWCCA 549
Decision Date: 13 December 2000

CaseChat Overview and Summary

In Regina v Bacon, the New South Wales Court of Criminal Appeal considered an appeal against a sentence imposed on the applicant, Kane David Bacon, for supplying a prohibited drug on an ongoing basis. The applicant had pleaded guilty to three counts of supplying methylamphetamine, a mid-range drug, to an undercover police officer over a one-month period in 1999. The District Court sentenced the applicant to a minimum term of two years imprisonment, to be followed by an additional term of twelve months, to be served cumulatively with a six-month fixed term for an unrelated assault occasioning actual bodily harm. The applicant argued that the sentence imposed for the drug supply offence was manifestly excessive, taking into account factors such as the plea of guilty, the mid-range nature of the drug, the amount supplied, the brevity of the applicant's involvement, and his voluntary cessation of supply prior to apprehension. The Court of Criminal Appeal allowed leave to appeal and quashed the sentence, re-sentencing the applicant to a term of imprisonment of three years with a non-parole period of eighteen months. The Court found that the minimum term imposed did exceed the legitimate bounds of sentencing discretion, but acknowledged the compelling circumstance of the applicant's voluntary cessation of trading before he became aware that he was dealing with a police officer. The Court also noted that the drug content of the substances supplied was very low.

Orders