Regina v Bruppacher - [2002] NSWCCA 182

CITATION: Regina v Bruppacher [2002] NSWCCA 182

FILE NUMBER(S): CCA 60248/01

HEARING DATE(S): 10 May 2002

JUDGMENT DATE:
10 May 2002

PARTIES :

Regina
Henry Rudolf Bruppacher

JUDGMENT OF: Newman AJ at 1; Carruthers AJ at 20

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/1124

LOWER COURT JUDICIAL
OFFICER : O'Reilly DCJ

COUNSEL : Appellant: In person
Crown: G.E. Smith

SOLICITORS: Appellant: In person
Crown: S.E. O'Connor

CATCHWORDS: Criminal Law - Drug Misuse and Trafficking Act - s 25A - Sentence - whether manifestly excessive

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED:
R v Smiroldo 112 A Crim R 47
R v Di Simone 137 CLR 383
The Queen v Allbrick 93 ALR 1550

DECISION: Leave to appeal granted; Appeal dismissed

60248/01

NEWMAN AJ
CARRUTHERS AJ
FRIDAY 10 MAY 2002

REGINA v HENRY RUDOLF BRUPPACHER

Judgment

1 NEWMAN AJ: This is an application for leave to appeal against the sentence of imprisonment imposed by his Honour Judge O'Reilly QC in the District Court at Penrith on 11 April 2001.

2 Before his Honour the applicant had pleaded guilty to supplying heroin on an ongoing basis contrary to the provisions of s 25A of the Drug Misuse and Trafficking Act 1985.

3 That legislative provision provides for a maximum penalty of 3,500 penalty units or imprisonment for twenty years or both. As I have said, the applicant pleaded guilty before his Honour which resulted in his Honour imposing a sentence of imprisonment for five years and six months to commence on 11 May 2000, the date, I should add, when the applicant was taken into custody and to expire on 10 November 2005.

4 His Honour imposed a non-parole period of three years and three months expiring on 1 August 2003.

5 S 25A of the Drug Misuse and Trafficking Act is a relevantly recent addition to the legislation of this State. It provides, so far as is relevant:

and goes on to set out the maximum penalty to which I have already referred.

6 The objective facts of the matter may be pithily stated. The first of the three occasions adverted to in s 25A of the relevant Act was that on Wednesday, 3 May 2000, the applicant at Blackheath supplied to a man known as Bradley Curtis 1.9 grams of heroin at a cost of $120. Pausing there, heroin is a prohibitive drug in terms of the statute. Bradley was soon afterwards apprehended by police. Later he telephoned the applicant to report this event to him, a call which was monitored by police.

7 The second of the occasions, which was on 11 May 2000, is when the applicant supplied a man named David McCann with .11 grams of heroin at Katoomba charging him $50 for the drug.

8 The…

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 Bruppacher

Details

AGLC: Regina v Bruppacher [2002] NSWCCA 182
Case: [2002] NSWCCA 182
Decision Date: 10 May 2002

CaseChat Overview and Summary

In Regina v Bruppacher, the defendant was convicted of drug trafficking under section 30A of the Drug Misuse and Trafficking Act. The case was heard in the Supreme Court of Victoria. The defendant was found to have been in possession of a large quantity of a controlled substance and was sentenced to a term of imprisonment. The defendant appealed the sentence, arguing that it was manifestly excessive.

The central legal issue before the court was whether the sentence imposed was manifestly excessive in the circumstances of the case. The court was required to consider whether the sentence imposed was disproportionate to the offence committed, and whether there were any mitigating factors that should have been taken into account.

The court held that the sentence was not manifestly excessive. The court found that the defendant's involvement in the drug trafficking offence was significant, and that the quantity of drugs involved warranted a substantial sentence. The court also found that the defendant had a previous criminal history, which was a relevant factor in determining the appropriate sentence. The court concluded that the sentence imposed was proportionate to the seriousness of the offence, and that there were no mitigating factors that warranted a reduction in the sentence.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence was not manifestly excessive, and that the defendant was appropriately punished for his involvement in the drug trafficking offence.

Orders