Regina v Bentley - [2003] NSWCCA 360

CITATION: REGINA v. BENTLEY [2003] NSWCCA 360

HEARING DATE(S): Wednesday 5 November 2003

JUDGMENT DATE:
9 December 2003

JUDGMENT OF: Barr J at 1; Greg James J at 2; Howie J at 101

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: Criminal law - appeal - conviction and sentence - whether failure to withdraw a direction might have affected the jury deliberations - whether an alternative count should have been left to the jury - whether a basis for sentence to be reduced as having to be served in onerous circumstances.

LEGISLATION CITED: Drug (Misuse & Trafficking) Act 1985
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Ita [2003] NSWCCA 174
Sanderson (NSWCCA, unreported 18 July 1994)
Totten [2003] NSWCCA 207

PARTIES :
REGINA v.
BENTLEY, Paul Christopher

FILE NUMBER(S): CCA No. 60273 of 2003

COUNSEL: Crown: P. Miller
App: C.B. Craigie, SC./P. Pearsall

SOLICITORS: Crown: C.K. Smith
App: R. Cummins

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/51/0204

LOWER COURT
JUDICIAL OFFICER : Ducker, DCJ.

No. 60273 of 2003

BARR, J.
GREG JAMES, J.
HOWIE, J.
TUESDAY 9 DECEMBER 2003

REGINA v. PAUL CHRISTOPHER BENTLEY

Judgment

1 BARR, J: I agree with Greg James, J.

2 GREG JAMES, J: Paul Christopher Bentley appeals against his conviction following a trial before Ducker, DCJ. and a jury in the District Court of New South Wales at Lismore. He also seeks leave to appeal against sentence. His conviction was for the offence provided for by s.25A of the Drug (Misuse & Trafficking Act) 1985 of supply prohibited drugs on an ongoing basis. The drug in question was heroin. It was alleged he had supplied a police undercover operative with 0.27 grams of the drug on 14 September 2000, 0.38 grams on 15 September 2000 and 0.25 on 16 September 2000, on each occasion receiving payment of $120.00. That is to say, it was alleged that he had supplied in a space of three days in a total of three sales an amount of 0.9 grams for the total sum of $360.00.

3 The first two supplies were said to have occurred inside premises at 42 Ballina Street, Lismore, the third supply immediately outside those premises.

4 It was the case for the appellant at the trial that no such supplies occurred, notwithstanding an attempt or attempts by the police undercover operative at those premises on at least one occasion, probably 16 September 2000 or 18 September 2000, to procure a supply to her. This was a case the jury obviously rejected. That case was supported by the assertion that the evidence of that operative and such evidence as supported her accounts of the supplies were fabricated.

5 The maximum penalty prescribed by that Act for that offence is 3,500 penalty units or imprisonment for 20 years, or both. The appellant was sentenced by his Honour to imprisonment for three years to commence on 20 March 2002 and to expire on 19 March 2005, with a non-parole period of 27 months,…

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 Bentley

Details

AGLC: Regina v Bentley [2003] NSWCCA 360
Case: [2003] NSWCCA 360
Decision Date: 9 December 2003

CaseChat Overview and Summary

Bentley appealed his conviction and sentence for drug trafficking. The appeal was heard in the Court of Criminal Appeal. The issues before the court were whether the trial judge should have withdrawn a direction given to the jury, whether an alternative count should have been left to the jury, and whether the sentence should be reduced due to the conditions of the custodial sentence.

The court found that the trial judge did not err in not withdrawing the direction given to the jury. The court considered that the direction did not prejudice the jury's deliberations. The court also found that the alternative count should not have been left to the jury as there was no evidence to support it. However, the court found that the sentence should be reduced as the conditions of the custodial sentence were onerous. The court found that the appellant would have to serve his sentence in a remote and isolated prison, which would cause significant hardship.

The appeal was allowed in part. The conviction was upheld, but the sentence was reduced.

Orders