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Regina v J and H

Regina v J and H

Case [2005] NSWCCA 1 11 February 2005

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Reported Decision:
152 A Crim R 152

New South Wales

Court of Criminal Appeal

CITATION:
Regina v J & H [2005] NSWCCA 1
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23/11/04

JUDGMENT DATE:

11 February 2005

JUDGMENT OF:
Santow JA at 1; Bell J at 2; Howie J at 69

DECISION:
In the appeal of J; 1. Allow the appeal; 2. Quash the sentence imposed in the District Court, in lieu thereof J is sentenced to nine years' and six months' imprisonment to date from 10 July 2002. That sentence will expire on 9 January 2012. Specify a non-parole period of five years and nine months. The non-parole period will expire on 9 April 2008.; In the appeal of H; 1. Allow the appeal; 2. Quash the sentence imposed in the District Court, in lieu thereof H is sentenced to nine years imprisonment to date from 11 August 2002. That sentence will expire on 10 August 2011. Specify a non-parole period of five years and three months. The non-parole period will expire on 10 November 2007.

LEGISLATION CITED:

Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)

CASES CITED:
Dinsdale v R (2000) 202 CLR 321
Griffiths v The Queen (1977) 137 CLR 293
Malvaso v The Queen (1989) 168 CLR 227
Postiglione v R (1997) 189 CLR 295
R v Bezan [2004] NSWCCA 342
R v Dang [2004] NSWCCA 269
R v Dujeu [2004] NSWCCA 237; 46 A Crim R 121
R v Gallagher (1991) 23 NSWLR 220
R v Hughesman (unreported) Court of Criminal Appeal, 5 April 1995
R v Kevenaar [2004] NSWCCA 210
R v Mas Rivadavia [2004] NSWCCA 284
R v Schofield [2003] NSWCCA 3
R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
R v Wong and Leung [1999] 48 NSWLR 340
Wong v R [2001] 207 CLR

PARTIES:
Regina (Appellant)
J (1st Respondent)
H (2nd Respondent)

FILE NUMBER(S):
CCA 2004/1819; 2004/1810; 2001/2965

COUNSEL:
G Farmer (Crown)
R Hulme SC (for J)
C Craigie SC (for H)

SOLICITORS:
Cth DPP (Appellant)
SE O'Connor (Respondent "J")
Jeffries and Associates (Respondent "H")

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/1269

LOWER COURT JUDICIAL OFFICER:
Charteris DCJ

2004/1819 CCAP
2004/1810 CCAP
2001/2965

SANTOW JA
BELL J
HOWIE J
Friday 11 February 2005

Regina v J & H

Judgment

1 SANTOW JA: I agree with Bell J.

2 BELL J: These are Crown appeals against the inadequacy of sentences imposed upon the respondents by his Honour Judge Charteris (the Judge) in respect of the conviction of each for the offence of attempt to possess prohibited imports to which s 233B of the Customs Act 1901 (Cth) applies, namely, narcotic goods consisting of a quantity of MDMA (commonly known as ecstasy) in an amount not less than the commercial quantity applicable to that drug.

3 The maximum penalty for the offence is imprisonment for life.

4 On the hearing of 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 J and H

Details

AGLC: Regina v J and H [2005] NSWCCA 1
Case: [2005] NSWCCA 1
Decision Date: 11 February 2005

CaseChat Overview and Summary

In Regina v J & H, the Court of Criminal Appeal heard appeals against the sentences imposed on J and H for their convictions of attempting to possess prohibited imports, specifically a quantity of MDMA. The respondents had been convicted of a serious offence involving a significant quantity of the drug, with a maximum penalty of life imprisonment. The Crown appealed, arguing that the sentences imposed were manifestly inadequate. The Court found that the sentences imposed on J and H fell so far below the appropriate sentence for the offence as to disclose an error of principle. The Court determined that the appropriate range for sentencing in such cases, considering the quantity of drugs involved and the respondents' prior convictions, was higher than what had been imposed. The Court re-sentenced J to nine years and six months' imprisonment and H to nine years' imprisonment, specifying non-parole periods of five years and nine months and five years and three months respectively. The decisions of the Court were to allow the appeals and quash the original sentences, replacing them with the newly determined terms of imprisonment.

Orders