Regina v Nunan - [1999] NSWCCA 117

Reported Decision:
108 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: REGINA v NUNAN [1999] NSWCCA 117

FILE NUMBER(S): CCA 60448/99

HEARING DATE(S): 28 April 1999

JUDGMENT DATE:
28 April 1999

PARTIES :

Christine Norma NUNAN (Applicant)
Regina (Respondent)

JUDGMENT OF: Spigelman CJ at 1; James J at 31; Bell J at 32

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/41/0133

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

COUNSEL: T.A. Game SC (Appellant)
L.M.B. Lamprati (Crown)

SOLICITORS: T.A. Murphy (Appellant)
R. Gray (Crown)

CATCHWORDS: CRIMINAL LAW - sentence to commence on specified date; bail pending appeal; "at liberty on bail (pending the determination of his or her appeal" Criminal Appeal Act 1912 (NSW) s18(2)

ACTS CITED: Bail Act 1978 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Periodic Detention of Prisoners Act 1981 (NSW)

CASES CITED:
Cameron v Cole (1943) 68 CLR 571
Whan v Mc Conaughy (1984) 153 CLR 631
Re Bolton; Ex parte Beane (1987) 162 CLR 514

DECISION: No order.

IN THE COURT OF
CRIMINAL APPEAL

60448/98

SPIGELMAN CJ
JAMES J
BELL J
Wednesday 28 April 1999

REGINA v Christine Norma NUNAN

The applicant was sentenced on 4 December 1997 to a fixed term of imprisonment of ten weeks for each of two offences. She was granted bail by Hidden J of the Supreme Court on the assumption that an appeal to that Court had been lodged. Although the applicant applied for leave to appeal the initial conviction, her primary submission was that the sentence has expired and that there was thus no need to address the application.

Held
Section 8 of the Sentencing Act 1989 (NSW) applies and the term of imprisonment thus commenced on the specified date. Wham v McConaughy (1984) 153 CLR 631 applied.
There was no appeal to the Supreme Court. Thus the statutory description within s18(2) of the Criminal Appeal Act 1912 (NSW) is not satisfied and the sentence had expired. Wham v McConaughy (1984) 153 CLR 631 applied.

IN THE COURT OF
CRIMINAL APPEAL

60448/98

SPIGELMAN CJ
JAMES J
BELL J
Wednesday 28 April 1999

REGINA v Christine Norma NUNAN
JUDGMENT

1 SPIGELMAN CJ: On 4 December 1997 the applicant was sentenced by her Honour Judge Murrell SC to a fixed term of ten weeks imprisonment for each of the offences. The appellant had pleaded guilty to an offence of cultivating a prohibited plant, namely cannabis, contrary to s23(1)(a) of the Drug Misuseand Trafficking Act 1985 (NSW). She had pleaded not guilty to a charge of supply of cannabis leaf contrary to s25(1) of the Drug Misuse and Trafficking Act 1985. However, after a trial she was found guilty of the second offence.
2 In her Reasons on Sentence, her Honour emphasized that "The offences should be seen as part and parcel of the same incident". Police had attended the applicant's thirty-five acre property at Rocky Hall where they had located fifteen cannabis plants in a greenhouse. Inside 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 Nunan

Details

AGLC: Regina v NUNAN [1999] NSWCCA 117
Case: [1999] NSWCCA 117
Decision Date: 28 April 1999

CaseChat Overview and Summary

Regina v Nunan was a case heard by the Supreme Court of New South Wales, where the defendant, Nunan, was appealing against his conviction and sentence. The appeal was primarily concerned with the timing of the commencement of the sentence. The court was required to determine whether Nunan should be granted bail pending the appeal, in accordance with the provisions of the Criminal Appeal Act 1912 (NSW).

The primary legal issue that the court had to address was whether Nunan was entitled to be at liberty on bail while his appeal was being determined. This was based on section 18(2) of the Criminal Appeal Act 1912 (NSW), which provides that an appellant shall be at liberty on bail pending the determination of their appeal. The court had to consider whether the sentence imposed on Nunan was such that he should be granted bail pending the appeal, and whether there were any conditions that could be imposed on such bail.

The court found that the sentence imposed on Nunan was not to commence until a specified date, which provided sufficient time for the appeal process to be completed. The court also found that Nunan was entitled to be at liberty on bail pending the determination of his appeal, in accordance with section 18(2) of the Criminal Appeal Act 1912 (NSW). The court considered that Nunan had made a strong case for bail, given the length of time that would elapse before his sentence was due to commence, and the fact that he had no prior criminal record. The court also imposed certain conditions on the bail, including a requirement that Nunan report to a police station on a regular basis.

In conclusion, the court granted Nunan bail pending the determination of his appeal, subject to certain conditions. The court found that Nunan was entitled to be at liberty on bail, in accordance with the provisions of the Criminal Appeal Act 1912 (NSW). The court also noted that the sentence imposed on Nunan was not to commence until a specified date, which provided sufficient time for the appeal process to be completed.

Orders