Regina v Mehcur - [2002] NSWCCA 56

CITATION: Regina v Mehcur [2002] NSWCCA 56

FILE NUMBER(S): CCA 60019/02

HEARING DATE(S): Thursday 7 March 2002

JUDGMENT DATE:
7 March 2002

PARTIES :

Regina v Marcus Jan Mehcur

JUDGMENT OF: Spigelman CJ at 29; Grove J at 2; Barr J at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0977

LOWER COURT JUDICIAL
OFFICER : Hosking DCJ

COUNSEL : W.G. Dawe QC (Crown/Applicant)
S.J. Odgers SC (Respondent)

SOLICITORS: S.E. O'Connor (Crown)
Nyman Gibson & Company (Respondent)

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - CROWN APPEAL AGAINST SENTENCE - SUPPLY OF VARIETY OF DRUGS - SIGNIFICANT WEAPONRY READY FOR USE IN RESPONDENT'S HOME FROM WHICH DRUG DEALING OPERATED - OFFENCES TAKEN INTO ACCOUNT ON FORM 1 - NECESSITY TO RECOGNIZE SERIOUSNESS OF WEAPON POSSESSION AS ADJUNCT TO ILLICIT BUSINESS - TOTAL CRIMINALITY REQUIRING REFLECTION

LEGISLATION CITED: s5D Criminal Appeal Act

CASES CITED:
R v Kalache [2000] NSWCCA 2
R v Warman [2001] NSWCCA 147
R v Morgan 1993 70 A Crim R 368
R v Barton [2001] NSWCCA 63

DECISION: CROWN APPEAL ALLOWED; RESPONDENT RESENTENCED

60019/02

SPIGELMAN CJ
GROVE J
BARR J
Thursday 7 March 2002

REGINA v MARCUS JAN MEHCUR

Judgment

1 SPIGELMAN CJ: I will invite Grove J to give the first judgment.

2 GROVE J: This is a Crown appeal pursuant to s5D of the Criminal Appeal Act asserting the inadequacy of sentence imposed by G.S. Hosking, DCJ at Sydney District Court on 8 November 2001.

3 On that occasion the respondent appeared for sentence, having pleaded guilty to offences before a magistrate. Those offences were supplying a prohibited drug in a commercial quantity, being 519.85 grams of methylamphetamine; supplying a prohibited drug, being 1.8 grams of substance commonly referred to as ecstasy; supplying a prohibited drug, being 465.6 grams of pseudoephedrine; supplying a prohibited drug, being 5.4 grams of cocaine and, finally, possessing a prohibited firearm, being a rifle with silencer attached.

4 His Honour was also asked to take into account seven further offences on a Form 1, six of them relating to weapons and ammunition and the seventh to goods in custody, being reasonably suspected of having been stolen or unlawfully obtained.

5 Taking the matters on Form 1 into account, the respondent was sentenced on the first charge relating to the commercial quantity of methylamphetamine to imprisonment for four years and four months with a non parole period of two years and ten months. On the further four counts he was sentenced to imprisonment to be served concurrently, to terms of six months, twelve months, six months and twelve months respectively. The respondent had been in custody since his arrest on 8 February 2001 and it is observed that the fixed term sentences are now all expired.

6 The respondent was residing with his fiancée in premises at Lugarno. A statement by Detective Inspector Henness reveals that he was investigation manager of an inquiry relative to suspected drug offences being committed by one Ronald Young. In the course of that investigation…

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 Mehcur

Details

AGLC: Regina v Mehcur [2002] NSWCCA 56
Case: [2002] NSWCCA 56
Decision Date: 7 March 2002

CaseChat Overview and Summary

In Regina v Mehcur, the appeal before the Court of Criminal Appeal was brought by the Crown against the sentence imposed on the respondent for drug supply and possession of weaponry. Mehcur had been involved in a drug dealing operation that was facilitated from his residence, where police discovered a variety of illicit substances as well as significant weaponry. The primary legal issue before the court was whether the trial judge had appropriately taken into account the possession of weaponry when determining the sentence. The Crown argued that the trial judge had failed to recognise the serious implications of the respondent's possession of weaponry, which was an integral part of his criminal enterprise. The court was required to determine if this oversight warranted a reconsideration of the sentence.

The Court of Criminal Appeal held that the trial judge had indeed overlooked the significance of the weaponry in the context of the respondent's overall criminal activity. The court recognised that the possession of weaponry, as an adjunct to the drug dealing operation, was a serious factor that needed to be reflected in the sentence. The court determined that the trial judge's failure to adequately account for this aspect of the respondent's criminal conduct was a material error, which necessitated a review of the sentence. The Crown's appeal was subsequently upheld, and the matter was remitted to the trial court for reconsideration of the sentence in light of the correct legal principles.

The court emphasised the importance of comprehensively assessing all aspects of criminal conduct, particularly when they involve significant weaponry in the context of drug dealing operations. The totality of the criminality must be reflected in the sentence to appropriately deter such conduct and to uphold the principles of justice. In light of the court's decision, the matter was to be returned to the trial court for the re-sentencing of the respondent.

Orders