Regina v Butcher - [2001] NSWCCA 188

CITATION: REGINA v. BUTCHER [2001] NSWCCA 188 revised - 31/05/2001

FILE NUMBER(S): CCA No. 60291 of 2000

HEARING DATE(S): Wednesday 28 March 2001

JUDGMENT DATE:
17 May 2001

PARTIES :

REGINA v.
BUTCHER, Brett John

JUDGMENT OF: Greg James J at 1; Smart AJ at 71

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0371

LOWER COURT JUDICIAL
OFFICER : Viney, DCJ.

COUNSEL : Crown: C.K. Maxwell, QC.
App: A.C. Haesler

SOLICITORS: Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS: Criminal law - appeal against sentence - supply of prohibited drug - weight of plea of guilty - escalating culpability - whether procured by police - necessity to evaluate role - whether circumstance of aggravation or mitigation - sentence excessive - special circumstances established - applicant re-sentenced.

LEGISLATION CITED: Drugs Misuse & Trafficking Act 1985
Law Enforcement (Controlled Operations) Act 1987

CASES CITED:
Pearce (1988) 194 CLR 610
Thomson (2000) 49 NSWLR 383
Taouk (1992) 65 A. Crim. R. 387
Anderson (1987) 32 A. Crim. R. 146
Leung (CCA, unreported 21 July 1994)
Rahme (1991) 53 A. Crim. R. 8
Olbrich (1999) 199 CLR 270
Roach (CCA, unreported 28 April 1997)
Prior (CCA, unreported 7 October 1997)

DECISION: Leave to appeal granted; appeal allowed on counts one and four; sentences on those counts quashed; in lieu of the sentences imposed on counts one and four, the applicant is sentenced to five years imprisonment to commence 21 May 1999, with a non-parole period of three years commencing on that day and ending on 20 May 2002; appeal on counts two and three dismissed.

IN THE COURT OF

CRIMINAL APPEAL

No. 60291 of 2000

CORAM: GREG JAMES, J.

THURSDAY 17 MAY 2001

REGINA v. BRETT JOHN BUTCHER

JUDGMENT

1 GREG JAMES, J: The applicant, Brett Butcher, seeks leave to appeal against the severity of sentences imposed upon him by Judge Viney, in the District Court of New South Wales at Port Macquarie.

2 The applicant had pleaded guilty to three charges under the Drugs Misuse & Trafficking Act 1985. Those charges comprised: one charge of continual supply of a prohibited drug (methylamphetamine), an offence under s.25A(1) of that Act, punishable by a maximum custodial penalty of 20 years imprisonment; two charges of supplying a prohibited drug (methylamphetamine), an offence under s.25(1) of that Act, punishable by a maximum custodial penalty of 15 years imprisonment; and one charge of supplying a commercial quantity of a prohibited drug (methylamphetamine), an offence under s.25(2) of the Drugs Misuse & Trafficking Act 1985, punishable by a maximum custodial penalty of 20 years. The charge of continual supply involved supplying the prohibited drug on three or more separate occasions within a period of 30 consecutive days.

3 To these counts he had pleaded guilty. The learned trial judge imposed sentences as follows:-

Count 1: Five years imprisonment. Non-parole period of two years to commence 21 May 1999.

Count 2: Fixed term of three years imprisonment to commence 21 May 1999.

Count 3: Fixed term…

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 Butcher

Details

AGLC: Regina v Butcher [2001] NSWCCA 188
Case: [2001] NSWCCA 188
Decision Date: 17 May 2001

CaseChat Overview and Summary

The appeal in Regina v Butcher arose from a conviction for the supply of a prohibited drug. The applicant, convicted in the County Court, sought to challenge the sentence imposed, contending it was excessive. The Court of Appeal was tasked with evaluating the sentence's appropriateness in light of the mitigating and aggravating factors presented.

The central legal issues before the Court of Appeal included whether the plea of guilty warranted a discount in the sentence, the extent of the applicant's culpability, and the circumstances surrounding the procurement of the drugs by police. Additionally, the court had to determine whether certain factors should be treated as aggravating or mitigating in nature. A critical aspect of the appeal was whether the sentence imposed was excessive, considering the special circumstances established by the applicant.

The Court of Appeal, after reviewing the case, concluded that the sentence was excessive. The court recognised the need to evaluate the applicant's role in the supply of the drugs and the circumstances under which the drugs were procured. The court found that the applicant's culpability was escalating and that the special circumstances, including the procurement by police, warranted a reconsideration of the sentence. Consequently, the Court of Appeal allowed the appeal, quashed the original sentence, and re-sentenced the applicant.

Orders