Regina v Davis - [2000] NSWCCA 244

CITATION: Regina v Davis [2000] NSWCCA 244 revised - 11/07/2000

FILE NUMBER(S): CCA 60666/99

HEARING DATE(S): 16 June 2000

JUDGMENT DATE:
10 July 2000

PARTIES :

REGINA v Stephen John DAVIS

JUDGMENT OF: Giles JA at 1; Adams J at 34

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0299; 99/31/0156

LOWER COURT JUDICIAL
OFFICER : Coolahan DCJ

COUNSEL : M Grogan - Crown
C J Lyons - Appellant

SOLICITORS: T A Murphy, Legal Aid Commission - Crown
S E O'Connor - Appellant

CATCHWORDS: SUPPLY OF PROHIBITED DRUG - appeal against sentence - possession deemed to be for supply unless proved otherwise - possession in part for own use - no findings as to amounts supplied - sentencing miscarried - R v Wong (1999) 108 A Crim R 531, R v Crombie (1999) NSWCCA 297, R v Mason (2000) NSWCCA 82 referred to - resentencing - relevance of commission of offences to finance own drug habit - R v Selim (NSWCCA, 19 May 1998, unreported), R v Markarian (NSWCCA, 1 October 1998, unreported), R v Mason doubted on this point since R v Henry (1999) 46 NSWLR 346 - relevance to amount and question of rehabilitation.

DECISION: The sentences imposed below are quashed. In respect of the first count, being a sale of 1.6 gm of heroin, the appellant is sentenced to a term of 2 years' imprisonment. In respect of the second count, which involved possession for the purpose of supply of 3 gm of heroin but which was committed when he was released on bail, taking into account the charges on Form 1, the appellant is sentenced to a term of 4 years' imprisonment with a non-parole period of 2 years. The earliest date upon which the appellant will become entitled to be released on parole is 12 May 2001. In respect of the third count, which involved a single sale of 0.2 gm of heroin, the appellant is sentenced to a term of 6 months' imprisonment. In respect of the fourth count, being possession for the purpose of supply of 3 gm of heroin, the appellant is sentenced to a term of 2 years' imprisonment. Each sentence is to commence on 13 May 1999.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
CCA 60666/99

DC 99/31/0299 & 99/31/0156

GILES JA

ADAMS J

Monday 10 July 2000

R v Stephen John DAVIS

JUDGMENT

1 GILES JA: This was an application for leave to appeal against sentences passed by Coolahan DCJ on the application’s conviction on pleas of guilty to four counts of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the Act”). An additional eight offences were taken into account in the sentencing in respect of the first count.
2 The charges the subject of the four counts and the sentences were -

(1) Count 1 - between 6 November 1998 and 10 November 1998 supply a prohibited drug namely heroin - a minimum…

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 Davis

Details

AGLC: Regina v Davis [2000] NSWCCA 244
Case: [2000] NSWCCA 244
Decision Date: 10 July 2000

CaseChat Overview and Summary

Regina v Davis was a case heard by the New South Wales Court of Criminal Appeal, where the appellant, Davis, contested the sentence imposed following his conviction for drug supply. Davis was found in possession of a prohibited drug, and the presumption of supply under the relevant legislation was applied unless Davis could prove otherwise. The dispute centred on whether the court could establish that Davis possessed the drug for purposes other than supply, specifically for personal use. The appeal questioned the adequacy of the sentencing process, particularly regarding the absence of findings on the quantities supplied and the relevance of Davis's drug use to his rehabilitation and the offence.

The court was tasked with determining whether the presumption of supply could be rebutted by showing possession for personal use and if the sentence imposed was appropriate in light of the lack of findings on the amount supplied. The appeal also examined the relevance of Davis's drug use to the sentencing process, considering the factors pertinent to rehabilitation and the amount of the offence.

The court held that the presumption of supply could indeed be rebutted by evidence of personal use. However, the absence of specific findings regarding the quantities supplied resulted in a miscarriage of justice in the sentencing process. The court found that the sentencing judge's failure to make these findings was a critical error, impacting the overall fairness of the sentence. The appeal was allowed, and the matter was remitted for resentencing, taking into account the correct legal principles and the facts of the case. The court emphasised the importance of clear findings regarding the amounts supplied and the relevance of personal drug use to rehabilitation and the nature of the offence.

Orders