Regina v Blakeman - [1999] NSWCCA 415

CITATION: Regina v Blakeman [1999] NSWCCA 415 revised - 20/12/99

FILE NUMBER(S): CCA 60712/98

HEARING DATE(S): 9 September 1999

JUDGMENT DATE:
9 September 1999

PARTIES :

Regina v Kerry Vernon Short BLAKEMAN

JUDGMENT OF: Newman J at 26; Simpson J at 2; Hidden J at 26

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/11/0305

LOWER COURT JUDICIAL OFFICER: Mitchelmore DCJ

COUNSEL: F A Veltro - Crown
G D Wendler - Appellant

SOLICITORS: Commonwealth Director of Public Prosecutions
John D Weller and Associates - appellant

CATCHWORDS:

ACTS CITED: Customs Act 1901
Crimes Act 1900
Criminal Procedure Act

CASES CITED:
R v Robinson 5 August 1998
R v Behar unreported, NSW CCA 14 October 1998
R v Fahda [1999] NSWCCA 267
R v Benais [1999] NSWCCA 236

DECISION: Leave to appeal granted, appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60712/98

NEWMAN J
SIMPSON J

HIDDENJ

9 September 1999

REGINA v Kerry Vernon Short BLAKEMAN

Judgment
1    NEWMAN J: I will ask Simpson J to deliver the first judgment in this matter.
2    SIMPSON J: On 22 October 1998 the applicant was convicted after a trial by jury of a charge of conspiracy to import into Australia narcotic goods to which s 233B of the Custom's Act 1901 applies. On 13 November 1998 he was sentenced by Mitchelmore DCJ to imprisonment for three and a half years with a non-parole period of two years and three months. The applicant seeks leave to appeal the sentence. He has abandoned an appeal against conviction.
3    The prohibited goods in question consisted of the drug commonly known as Ecstacy. The conspiracy involved 296 tablets containing a total quantity of 25.4 grams of the pure drug. This was well in excess of the trafficable quantity prescribed by Schedule VI of the Act (0.5 grams) and exposed the applicant to a maximum penalty of imprisonment for twenty-five years or a fine of $100,000 or both.
4    The sentencing judge was satisfied beyond reasonable doubt that the applicant had arranged with the co-conspirator, a man named Anderson, for the drug to be sent from Germany concealed in three parcels containing cassette tapes, addressed to two post office boxes taken out by Anderson in false names. The applicant posted the articles while on a trip to Germany between June and August 1994. In the applicant's favour, the sentencing judge was not satisfied that the applicant travelled overseas for the purpose of the conspiracy but rather considered that he took the opportunity that presented itself while he was coincidentally in Europe.
5    There was subjective material before the sentencing judge. The applicant was born on 15 March 1957. He was forty-one at sentencing. His only previous encounter with the law involved possession and self-administration of prohibited drugs and possession of equipment for that purpose in 1990, in respect of which no convictions were recorded and which his Honour ignored for sentencing purposes. He had an impressive work record, having served in the New Zealand army and subsequently…

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 Blakeman

Details

AGLC: Regina v Blakeman [1999] NSWCCA 415
Case: [1999] NSWCCA 415
Decision Date: 9 September 1999

CaseChat Overview and Summary

In Regina v Kerry Vernon Short Blakeman, the Court of Criminal Appeal was asked to consider an appeal against a sentence imposed on the applicant by Mitchelmore DCJ in the District Court. The applicant had been convicted of a charge of conspiracy to import into Australia narcotic goods to which s 233B of the Customs Act 1901 applies. The prohibited goods in question consisted of the drug commonly known as Ecstasy. The applicant had arranged with a co-conspirator for the drug to be sent from Germany concealed in three parcels containing cassette tapes, addressed to two post office boxes taken out by the co-conspirator in false names. The applicant posted the articles while on a trip to Germany between June and August 1994. The applicant was sentenced by Mitchelmore DCJ to imprisonment for three and a half years with a non-parole period of two years and three months. The applicant sought leave to appeal against the sentence.

The court considered several issues in relation to the sentence. Firstly, the court considered whether there were factual errors in the sentencing remarks. The court found that the errors, if any, were minor and did not impact on the overall sentence. Secondly, the court considered whether the sentencing judge gave insufficient weight to the delay in bringing the applicant to trial. The court found that the sentencing judge had expressly taken into account the effect of delay and that the delay did not necessarily or automatically result in a downward adjustment of a sentence. Thirdly, the court considered whether the sentence imposed on the applicant was manifestly excessive when compared to the sentences imposed in other cases. The court found that the sentence imposed on the applicant was well within the appropriate range. Finally, the court considered whether the sentencing judge failed to properly consider questions of parity with the co-offender. The court found that the sentencing judge had considered questions of parity and that there was no error in his approach.

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The court found that no error had been demonstrated in the sentence imposed by the sentencing judge.

Orders