Regina v Crowdey - [1999] NSWCCA 24

CITATION: REGINA v. CROWDEY [1999] NSWCCA 24 revised - 10/03/99

FILE NUMBER(S): CCA 60527 of 1998

HEARING DATE(S): Friday 5 March 1999

JUDGMENT DATE:
5 March 1999

PARTIES :

REGINA v.
CROWDEY, Terrence John

JUDGMENT OF: Greg James J at 1; Grove J at 26; Dunford J at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0089

LOWER COURT JUDICIAL OFFICER: Solomon, DCJ.

COUNSEL: Crown: P. Hastings, QC./G. Tabuteau
Respondent: P. Byrne, SC.

SOLICITORS: Crown: Commonwealth Director of Public Prosecutions
Respondent: Murphy's Lawyers

CATCHWORDS: Sentence - Crown appeal - findings of trial judge - "tariff" - small sample of other cases - manifest inadequacy - mental condition - discretions in Crown appeals - constraints on substituted sentence.

ACTS CITED: Criminal Appeal Act - s.5D
Crimes Act 1914 (Cth) - s.16A(2)

CASES CITED:
The Queen v. Forrester (CCA
unreported 16 October 1998)
Regina v. Soonius (CCA
unreported 29 March 1998)
The Queen v. L. (CCA
unreported 17 June 1996)
Regina v. King [1999] NSWCCA 16
Regina v. Hallocoglu (1992) 29 NSWLR 67
Regina v. Kelly (1993) 30 NSWLR 64
Cranssen v. The Queen (1936) 55 CLR 509
The Queen v. WHS (CCA
unreported 27 March 1995)
The Queen v. Gallagher (1991) 23 NSWLR 220
The Queen v. Jurisic (CCA
unreported 12 August 1998)
The Queen v. Hayes (1987) 29 A. Crim. R. 452

DECISION: Appeal allowed

CROWDEY -10-
IN THE COURT OF
CRIMINAL APPEAL
No. 60527 of 1998
CORAM: GROVE, J.
DUNFORD, J.
GREG JAMES, J.
FRIDAY 5 MARCH 1999

REGINA v. TERRENCE JOHN CROWDEY
JUDGMENT

GREG JAMES, J:
1 Appeal is brought pursuant to s.5D of the Criminal Appeal Act 1912 by the Commonwealth Director of Public Prosecutions in respect of the sentence passed on the respondent in the District Court of New South Wales by his Honour Judge Solomon, DCJ, of two and a half years imprisonment with a non-parole period of one year and six months, asserting it is manifestly inadequate.
2 The respondent had pleaded guilty before his Honour, adhering to the plea he entered before the magistrate, to one charge of being knowingly concerned in the importation of a quantity of cocaine not less than the traffickable quantity, the maximum penalty for which was a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both.
3 The traffickable quantity for cocaine is two grams.
4 After a controlled delivery to the respondent's premises, the Australian Federal Police seized cocaine totalling some 37.8 grams pure with a value noted in the papers as approximately $21,600. On arrest, the respondent was apparently cooperative, participating in an interview with the police and confirming that he had played a principal role in Australia distributing to an already established small network of user customers quantities of cocaine imported by mail from his previous partner from the United States, remitting to that partner sums in the vicinity of $85,000 to $100,000. He had thus admitted in addition to the offence charged participation in trafficking…

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 Crowdey

Details

AGLC: Regina v Crowdey [1999] NSWCCA 24
Case: [1999] NSWCCA 24
Decision Date: 5 March 1999

CaseChat Overview and Summary

The case of Regina v Crowdey involved an appeal by the Crown against the sentence given to the defendant by the trial judge. The defendant, Crowdey, was convicted of a serious crime and the Crown was dissatisfied with the leniency of the sentence imposed. The appeal was heard in the higher court, which was tasked with assessing the appropriateness of the sentence in light of the evidence and legal considerations. The primary issue before the court was whether the trial judge's sentence was manifestly inadequate, taking into account the defendant's mental condition and the need to consider a range of other cases for comparative purposes.

The court was required to determine whether the sentence imposed by the trial judge was so disproportionate as to warrant a higher penalty. This involved examining the trial judge's findings and the reasoning behind the sentence, as well as assessing whether the sentence reflected the seriousness of the offence and the need for deterrence and retribution. The court also had to consider the discretion available to it in Crown appeals, particularly in light of the defendant's mental condition, and whether there were any constraints on the ability to substitute a different sentence.

The court found that the sentence imposed by the trial judge was indeed manifestly inadequate. The trial judge had relied on a small sample of other cases and had not adequately considered the broader context or the need for a sentence that reflected the gravity of the offence. The court emphasised the importance of using a range of comparable cases to ensure that the sentence was proportionate and appropriate. In exercising its discretion, the court took into account the defendant's mental condition but ultimately determined that a more severe sentence was necessary to achieve the aims of sentencing. The higher court substituted a sentence that it deemed more appropriate and ordered that the defendant be re-sentenced accordingly.

Orders