CITATION: REGINA v. BENTLEY [2003] NSWCCA 360 HEARING DATE(S): Wednesday 5 November 2003 JUDGMENT DATE:
9 December 2003JUDGMENT 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 1999CASES CITED: Ita [2003] NSWCCA 174
Sanderson (NSWCCA, unreported 18 July 1994)
Totten [2003] NSWCCA 207PARTIES :
REGINA v.
BENTLEY, Paul ChristopherFILE NUMBER(S): CCA No. 60273 of 2003 COUNSEL: Crown: P. Miller
App: C.B. Craigie, SC./P. PearsallSOLICITORS: 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
TUESDAY 9 DECEMBER 2003BARR, J.
GREG JAMES, J.
HOWIE, J.
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,…
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- AGLC
- Regina v Bentley [2003] NSWCCA 360
- Case
- [2003] NSWCCA 360
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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Ratio Decidendi
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