Regina v R Yates

[1999] NSWCCA 403

CITATION:	Regina v R Yates [1999] NSWCCA 403
FILE NUMBER(S):	CCA 60321/99
HEARING DATE(S):	8 December 1999
JUDGMENT DATE:	8 December 1999
PARTIES :	Regina v Rogan Yates
JUDGMENT OF:	Sperling J at 1; James J at 10

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0056
LOWER COURT JUDICIAL OFFICER:	Woods DCJ

COUNSEL:	(Applicant): G Nicholson QC (Crown): C K Maxwell QC
SOLICITORS:	(Applicant): M Rumore (Crown): S E O'Connor
CATCHWORDS:	(No question of principle)
ACTS CITED:	Drug Misuse & Trafficking Act 1985 Sentencing Act 1989 Criminal Appeal Act 1912
CASES CITED:	Astill (No 2) (1992) 64 A Crim R 289 Bugmy (1990) 169 CLR 525 Church (NSW CCA, 6 November 1998, unreported) Cocking [1999] NSWCCA 311 Isaacs (1997 90 A Crim R 587 Kenworthy (NSW CCA, 3 August 1995, unreported) Maclay (1990) 19 NSWLR 112 McDonald (NSW CCA, 12 October 1998, unreported) Moffatt (NSW CCA, 21 June 1994, unreported) Moffitt (1990) 20 NSWLR 114 Morrissey (NSW CCA, 15 July 1994, unreported) Oastler (NSW CCA, 7 October 1992, unreported) Power (1974) 131 CLR 623
DECISION:	Leave to appeal against sentence granted; Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60321/99

JAMES J

SPERLING J

Wednesday 8 December 1999
REGINA v Rogan YATES
JUDGMENT

1    SPERLING J: On 27 May 1999, the applicant was sentenced by Woods DCJ on a single count of knowingly taking part in the supply of a prohibited drug of not less than the commercial quantity, between 20 May 1997 and 30 September 1997, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty to that offence is a fine of 3500 penalty units or 20 years imprisonment or both.

2    The sentence imposed was a minimum term of two years imprisonment and an additional term of eight months. The relationship between the minimum and additional terms in this sentence accorded with the statutory formula.

3    The findings of the sentencing judge in relation to the objective features of the offence and the subjective considerations in the case are not in themselves impugned. There is no submission that the total sentence was excessive, nor in the circumstances of the case could there be.

4    The applicant submits that his Honour erred in failing to find that there were special circumstances pursuant to s 5(2) of the Sentencing Act 1989, and in failing to enlarge the additional term at the expense of the minimum term relative to the statutory formula on that account; or that the minimum term was otherwise excessive by reason of the subjective features of the case.

5    The minimum term must reflect the seriousness of the offence: Bugmy (1990) 169 CLR 525, 531, Power (1974) 131 CLR 623, 628, Maclay (1990) 19 NSWLR 112, 126, Moffitt (1990) 20 NSWLR 114, 117 and 121. The minimum term must not be reduced below what is sufficient to reflect the criminality of the offence: Morrissey (NSW CCA, 15 July 1994, unreported), Kenworthy (NSW CCA, 3 August 1995, unreported), or where the importance of general deterrence requires that the minimum term not be reduced: Moffatt (NSW CCA, 21 June 1994, unreported). See also McDonald (NSW CCA, 12 October 1998, unreported) and Church (NSW CCA, 6 November 1998, unreported).

6    Unless satisfied that a lesser sentence is warranted, this Court is bound to dismiss an appeal against sentence: Criminal Appeal Act 1912, s6(3). See Oastler (NSW CCA, 7 October 1992, unreported), Astill (No 2) (1992) 64 A Crim R 289, Isaacs (1997) 90 A Crim R 587, 595 and Cocking (1999) NSWCCA 311.

7    I have regard to the objective criminality of the offence in this case, apparent from the findings of the sentencing judge, and to the importance of general deterrence. I have regard to the factual and other considerations advanced by counsel for the applicant.

8    I am of the opinion that a shorter minimum term is not warranted, and would not be substituted if the sentence were quashed for error and this Court were to re-sentence the applicant. Accordingly, an appeal in this matter should be dismissed.

9    I propose the following orders:

(1) Grant leave to appeal.
(2) Appeal dismissed.

10    JAMES J: I agree with the judgment of Sperling J and with the orders proposed by his Honour.

11    Accordingly, the orders of the Court will be leave to appeal against sentence is granted but the appeal against sentence is dismissed.

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