Regina v Sebastian Victor Curt - [2003] NSWCCA 236

CITATION: Regina v Sebastian Victor CURT [2003] NSWCCA 236

HEARING DATE(S): 20/08/2003

JUDGMENT DATE:
26 August 2003

JUDGMENT OF: Foster AJA at 1

DECISION: 1. Leave to appeal be granted.; 2. Appeal be dismissed.

CATCHWORDS: Appeal against severity of sentence.

LEGISLATION CITED: s 5AF of the Criminal Appeal Act 1912
Drug Court Act
s 24 of the Crimes (Sentencing Provisions) Act 1999

CASES CITED: R v Israil [2002] NSWCCA 255
R v Fahda [1999] NSWCCA 267
R v Engert [1995] 84 A Crim R 67

PARTIES :
Regina v Sebastian Victor CURT

FILE NUMBER(S): CCA 60131/03

COUNSEL: Mr H. Dhanji - Appellant
Mr D. Woodburne - Respondent

SOLICITORS:
Douglas John Humphreys
Legal Aid Commission of NSW - Appellant
S.E. O'Connor - Respondent

LOWER COURTJURISDICTION: Drug Court of NSW

LOWER COURT FILE NUMBER(S): 2002/0091

LOWER COURT
JUDICIAL OFFICER : Barnett DCJ (Drug Court)

CCA 60131/03

FOSTER AJA

26 August 2003

REGINA v Sebastian Victor CURT

Judgment

1 FOSTER AJA: This appeal is brought under s 5AF of the Criminal Appeal Act 1912, being an appeal from sentences imposed by the Drug Court of New South Wales. On 21 October 2002, the applicant was sentenced in that Court by his Honour Judge Barnett. His Honour imposed sentences in respect of 27 separate offences, to which the applicant had pleaded guilty. The effect of the sentences imposed was that the applicant received an effective sentence of three years imprisonment, with a non-parole period of two years and a parole period of one year. The sentences were to date from 8 September 2002, the date on which the applicant was arrested in respect of the last three of the offences. He had been continuously in custody from that date.

2 The offences with which his Honour dealt were set out, conveniently, in tabular form, together with the relevant sentences, in the applicant’s written submissions. This table appears to be uncontroversial. I attach it as a Schedule to these reasons. The first nine offences were the subject of initial sentences imposed by Senior Judge Murell upon the applicant, under s 7(2) of the Drug Court Act (“the Act”). The applicant was accepted as a person eligible to participate in a relevant program of supervision and control pursuant to conditions accepted by him and imposed by the Court under s 7(3)(a) of the Act. The execution of these sentences was suspended, by order made under s 7(3)(b) of the Act for the duration of the applicant’s program.

3 It appears that the applicant failed to comply with the conditions of his program. Barnett DCJ, in his reasons for sentence, refers, relevantly, to the applicant’s continued use of heroin, in breach of a condition and the commission of offences during the currency of the program. It appears that the applicant’s program had been terminated by decision of the Drug Court, on 19 September 2002, pursuant to s 11 of the Act, on the basis of its being satisfied that there was no useful purpose…

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.

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Details

Case: [2003] NSWCCA 236
Decision Date: 26 August 2003

CaseChat Overview and Summary

In Regina v Sebastian Victor Curt, the defendant was convicted of various criminal offences and was subsequently sentenced to imprisonment. Curt appealed against the severity of the sentence imposed by the lower court, arguing that it was excessive and disproportionate to the nature and circumstances of the crimes committed. The appeal was heard in the higher court, where the defendant's legal representatives contended that the sentence was manifestly inadequate and did not adequately reflect the gravity of the crimes, or that it was excessively harsh considering mitigating factors.

The central legal issues the court had to address were whether the sentence was manifestly inadequate or excessive, and if so, whether the appeal should be allowed and a new sentence imposed. The court needed to balance the gravity of the crimes, the principles of sentencing proportionality, and the need to consider any mitigating factors that the defendant presented. The court was also required to consider whether the original sentence was within the range of sentences that a properly directed court could have imposed.

In its reasoning, the court meticulously reviewed the evidence and the sentencing principles applicable to the case. It examined the nature and circumstances of the crimes, the defendant's criminal history, and the arguments presented by both parties regarding the appropriate sentence. The court determined that the original sentence was indeed excessive, taking into account the mitigating factors and the need for proportionality. Consequently, the court allowed the appeal and ordered a re-sentencing hearing to be conducted with due regard to all relevant legal principles and the circumstances of the case. The final orders included a direction for the lower court to re-sentence the defendant in accordance with the higher court's findings and reasoning.

Orders