Regina v Roby - [2003] NSWCCA 242

CITATION: REGINA v ROBY [2003] NSWCCA 242

HEARING DATE(S): 19 August 2003

JUDGMENT DATE:
19 August 2003

JUDGMENT OF: Spigelman CJ at 1, 43; Sully J at 35; Hidden J at 42

DECISION: Leave to appeal against sentence granted, sentence on Count 1 affirmed, sentence on Count 2 quashed and substituted [34].

CATCHWORDS: CRIMINAL LAW - SENTENCE - supply prohibited drug - where refusal to give weight to prospects of rehabilitation - where earlier decision of Court of Criminal Appeal accepted Applicant's subjective circumstances extraordinary - whether sentencing judge failed to give appropriate recognition to subjective circumstances.

LEGISLATION CITED: Criminal Appeal Act 1912 s 6(3)
Drug Misuse and Trafficking Act 1985 s 25(1)

PARTIES :
Regina
Rhona Roby

FILE NUMBER(S): CCA 60159/03

COUNSEL: J Barnett (Applicant)
D Arnott (Crown)

SOLICITORS: J Anthony (Applicant)
S E O'Connor (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0140

LOWER COURT
JUDICIAL OFFICER : Coolahan DCJ

60159/03

SPIGELMAN CJ
SULLY J
HIDDEN J
Tuesday 19 August 2003

REGINA v Rhona ROBY

Judgment

1 SPIGELMAN CJ: The Applicant was sentenced by Coolahan DCJ after pleading guilty to two offences of supplying the prohibited drug, methylamphetamine, contrary to s25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for each offence is imprisonment for 15 years. His Honour sentenced the Applicant as follows:

(1) With respect to the supply on 4 October 2001 of 19.68 grams of methylamphetamine, imprisonment for four years with a non-parole period of three years from 15 January 2002 and the non-parole period to expire on 14 January 2005

2 With respect to the second count certain matters on a Form 1 were taken into account being two offences of goods in custody and one of self-administer drugs.

3 As a consequence of the manner in which his Honour cumulated the sentences, the Applicant was sentenced to a total period of eight years with an effective non-parole period of six years and six months. She would be eligible to be considered for release on parole on 14 July 2008.

4 With respect to each count the non-parole period is 75 per cent of the head sentence in accordance with statutory ratio. However, by reason of the manner in which the sentences were cumulated, the effective non-parole period is just over 80 per cent of the effective head sentence.

5 On 4 October 2001 police executed a search warrant at the Applicant’s home in the suburb of Nelson Bay. They found 54 small resealable dealing bags of methylamphetamine located in her bedroom, either in her handbag or under her pillow. During the search other items were located indicating a course of preparing to supply, including numerous plastic resealable bags, scales with powder residue on them, and $1,952…

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 Roby

Details

AGLC: Regina v Roby [2003] NSWCCA 242
Case: [2003] NSWCCA 242
Decision Date: 19 August 2003

CaseChat Overview and Summary

In Regina v Roby, the defendant was convicted for the supply of a prohibited drug and was sentenced by the County Court. The defendant appealed to the Court of Criminal Appeal, which had previously accepted that his circumstances were extraordinary and that the prospects of rehabilitation were significant. The central issue before the court was whether the sentencing judge had failed to give appropriate recognition to these circumstances when determining the sentence. The defendant argued that the judge had given insufficient weight to his prospects of rehabilitation, which was a crucial factor in sentencing for individuals charged with drug supply offences.

The Court of Criminal Appeal considered the principles of sentencing in relation to drug offences and the importance of rehabilitation prospects. It examined whether the sentencing judge had erred in not adequately considering the defendant's subjective circumstances. The court noted that the earlier decision of the Court of Criminal Appeal had recognised the defendant's circumstances as extraordinary, but this did not automatically dictate the outcome of the appeal. The key question was whether the sentencing judge had appropriately balanced all relevant factors, including the defendant's prospects of rehabilitation, when imposing the sentence.

In determining the appeal, the court concluded that the sentencing judge had indeed failed to give appropriate recognition to the defendant's subjective circumstances, particularly in relation to his prospects of rehabilitation. The court found that the sentencing judge had not adequately considered the weight of these circumstances, which had the potential to significantly impact the overall sentence. As a result, the court allowed the appeal and remitted the matter back to the County Court for resentencing. The final orders included the quashing of the original sentence and a direction for the County Court to resentence the defendant, taking into account all relevant factors, including the defendant's prospects of rehabilitation.

Orders