Regina v Schluenz - [2001] NSWCCA 314

CITATION: Regina v Schluenz [2001] NSWCCA 314

FILE NUMBER(S): CCA 60194/00

HEARING DATE(S): Friday 10 August 2001

JUDGMENT DATE:
10 August 2001

PARTIES :

Regina v Gloria Rosalin Schluenz

JUDGMENT OF: Spigelman CJ at 1,32; Grove J at 2; Einfeld AJ at 34

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/3001

LOWER COURT JUDICIAL
OFFICER : Howie DCJ

COUNSEL : D. G. Staehli (Crown)
P.M. Strickland (Appellant)

SOLICITORS: Commonwealth DPP (Crown)
D. Humphreys (Appellant)

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - DRUG IMPORTATION BY POST - AFFECT ON TEENAGE SON OF OFFENDER'S IMPRISONMENT - NOT EXCEPTIONAL - NO SPECIAL POINT OF PRINCIPLE

LEGISLATION CITED: Crimes Act 1914

CASES CITED:
Olbrich v The Queen (1999) 199 CLR 270
R. v Bimahendali (1999) 109 A Crim R 355
R. v Herrera NSWCCA unreported 6 June 1997
R. v Wong & Leung (1999) 48 NSWLR 340

DECISION: Appeal Dismissed

IN THE COURT OF
CRIMINAL APPEAL
60194/00

SPIGELMAN CJ
GROVE J
EINFELD AJ

Friday 10 August 2001

REGINA v GLORIA ROSALIN SCHLUENZ

JUDGMENT

1    SPIGELMAN CJ: I call on Grove J to deliver the first judgment.

2    GROVE J: The appellant was convicted upon an indictment charging that she had attempted to obtain possession of narcotic goods, being more than the trafficable quantity of methylamphetamine, following a trial before Judge Howie (as he then was) and a jury. His Honour sentenced the appellant to a total of seven years imprisonment with a non-parole period of four years.

3    The application seeks reduction of that sentence. In support, certain material concerning the effect of the incarceration of the appellant upon her teenage son has been tendered to the Court, and I will turn to this material but first I will recapitulate the essential circumstances of the offence.

4    These facts were found by the learned sentencing judge and are not the subject of challenge in this Court. On 13 September 1998 a parcel arrived in Australia from the Philippines addressed to Leticia Artiagar, 19 Monterey Street, Monterey through the Federal Express forwarding agency. The documentation included a contact mobile telephone number, 0413 166 285.

5    The package was subjected to a random check by customs officers and there was found a computer hard drive which, upon being dismantled, was found to contain powder analysed as 83.2 grams of pure methylamphetamine.

6    A person named Leticia Artiagar was outside of Australia at this time and did not enter the country until November. The address on the package was that of the appellant. The telephone number related to a service to a mobile phone which the appellant initially told police had been lost, but she later produced it from a lounge chair within which it had been hidden during a police search of her premises.

7    An employee of Federal Express, unaware of the Customs interception, called the number and spoke to the appellant, who identified herself as "Leticia". The appellant telephoned another employee of Federal Express, again masquerading as "Leticia" and gave…

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 Schluenz

Details

AGLC: Regina v Schluenz [2001] NSWCCA 314
Case: [2001] NSWCCA 314
Decision Date: 10 August 2001

CaseChat Overview and Summary

Schluenz was charged and convicted of drug importation by post and was subsequently sentenced to imprisonment. The offender appealed against his sentence on the basis that the impact of his imprisonment on his teenage son constituted an exceptional factor warranting a departure from the sentencing principles set out in the Sentencing Act. The High Court of Australia was asked to determine whether the impact of the offender's imprisonment on his son was an exceptional factor warranting a departure from the principles of sentencing and whether the sentencing judge should have taken into account the exceptional impact on the offender's son.

The court held that the impact of the offender's imprisonment on his son was not an exceptional factor warranting a departure from the sentencing principles. The court found that the sentencing judge had taken into account the impact of the offender's imprisonment on his son, but that the impact was not exceptional. The court held that the impact on the offender's son was not a special point of principle that warranted a departure from the sentencing principles. The court further held that the sentencing judge had not erred in law in failing to take into account the impact of the offender's imprisonment on his son as an exceptional factor.

The court dismissed the offender's appeal against sentence. The court held that the sentencing judge had correctly applied the principles of sentencing and had not erred in law in failing to take into account the impact of the offender's imprisonment on his son as an exceptional factor. The court found that the impact on the offender's son was not exceptional and did not warrant a departure from the sentencing principles. The court held that the sentence imposed by the sentencing judge was appropriate and did not require variation.

Orders