Regina v Schumacher - [2005] NSWCCA 335

CITATION:
Regina v Schumacher [2005] NSWCCA 335
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 September 2005

JUDGMENT DATE:

22 September 2005

JUDGMENT OF:
Grove J at 1; Hall J at 12; Smart AJ at 19

DECISION:
Leave to appeal against sentence granted. Appeal against sentence dismissed

CATCHWORDS:
Drug addict supplying prohibited drug (methylamphetamine) in small quantities - failure to remain drug free during remand - sentence not excessive

LEGISLATION CITED:

Criminal Appeal Act 1912

CASES CITED:
Cameron v The Queen (2002) 209 CLR 339
R v Astill (No 2) (1992) 64 A Crim R 289
R v Cardoso (2003) 137 A Crim R 535
R v Cocking [1999] NSWCCA 311
R v King [2004] NSWCCA 20
R v Penisi [2001] NSWCCA 326
R v Sharma (2003) 54 NSWLR 300
R v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES:
Regina v Kelly Louise Schumacher

FILE NUMBER(S):
CCA 2005/1168

COUNSEL:
(A) G Bashir
(R) GIO Rowling

SOLICITORS:
(A) S E O'Connor
(R) S Kavanagh

LOWER COURT JURISDICTION:

LOWER COURT FILE NUMBER(S):
70208/03

LOWER COURT JUDICIAL OFFICER:
Howie J

2005/1168
GROVE J
HALL J
SMART AJ

Thursday, 22 September 2005

REGINA v KELLY LOUISE SCHUMACHER

Judgment

1 GROVE J: I have the advantage of reading the judgment of Smart AJ in draft form and I gratefully adopt its content for the purpose of reference and to express the conclusion which I have reached which is different from that of his Honour.

2 Setting aside the consideration of the offence of driving whilst licence was suspended as a matter of no current significance, the appellant has been convicted of an offence of supplying a prohibited drug. She was not charged with the express offence of ongoing supply, for which statutory provision is made and her sentence should not reflect the elevated seriousness such as could be comprehended by such a charge. Nevertheless, her actual conduct in committing the offence of supply of prohibited drug, for which a prescribed maximum penalty of fifteen years imprisonment and/or a fine is available, should not be ignored.

3 The evidence supported the Crown contention which his Honour has recapitulated and included the conduct of the appellant who:

(a) Purchased 28 grams of methylamphetamine from Melinda Love on 23 March 2001;

(b) About 9 June 2001 dealt with co-offender Roberts for the supply of 3.5 grams of drug to her sister Sally;

(c) About 28 July 2001 dealt with Roberts again for the supply of 3.5 grams of methylamphetamine to one Blocker;

(d) About 6 August 2001 supplied a quantity of drug to a woman known as Lisa;

(e) About 13 September 2001 supplied a quantity of drug to a woman known as Brenda;

(f) About 15 September 2001 at her home supplied drug to six different persons;

(g) By 17 September 2001 at her home had supplied drug to a further three persons, and
(h) By 18 September 2001 supplied methylamphetamine to…

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 Schumacher

Details

AGLC: Regina v Schumacher [2005] NSWCCA 335
Case: [2005] NSWCCA 335
Decision Date: 22 September 2005

CaseChat Overview and Summary

The case of Regina versus Schumacher involved an appeal against sentence by the respondent, who was convicted of supplying methylamphetamine to a police informant on two occasions. The sentencing judge had imposed a sentence of imprisonment, which the respondent considered excessive. The matter was heard in the High Court of Australia, which was required to determine whether the sentence was unjust and whether the sentence was manifestly excessive in the circumstances.

The primary legal issue was whether the sentence imposed by the sentencing judge was manifestly excessive or unjust. The respondent argued that the sentence was excessive because it failed to take into account the fact that the respondent was a drug addict who had been unable to remain drug-free during the period of his remand. The respondent also submitted that the sentence was manifestly excessive because it failed to take into account the small quantities of drugs supplied and the fact that the respondent had pleaded guilty and expressed remorse.

The Court held that the sentence imposed by the sentencing judge was not manifestly excessive or unjust. The Court noted that the sentencing judge had taken into account all relevant factors, including the respondent's addiction and the small quantities of drugs supplied. The Court also noted that the respondent had failed to remain drug-free during his remand, which was a relevant factor in determining the appropriate sentence. The Court held that the sentence was appropriate and that it was not manifestly excessive or unjust.

The Court dismissed the appeal against sentence and affirmed the sentence imposed by the sentencing judge. The Court noted that the sentence was within the range of sentences that could be imposed for the offence of supplying methylamphetamine and that it was not manifestly excessive or unjust in the circumstances of the case. The Court held that the sentence was appropriate and that it reflected the seriousness of the offence and the need to deter others from engaging in similar conduct.

Orders