Regina v Shaw - [2001] NSWCCA 498

CITATION: REGINA v SHAW [2001] NSWCCA 498 revised - 30/01/2002

FILE NUMBER(S): CCA 60218/01

HEARING DATE(S): 21 November 2001

JUDGMENT DATE:
21 November 2001

PARTIES :

Regina
v
Wayne Keith SHAW

JUDGMENT OF: Barr J at 1; Adams J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/61/0148

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : A P Cook for the Applicant
G E Smith for the Crown

SOLICITORS: D J Humphreys for the Applicant
S E O'Connor for the Crown

CATCHWORDS: Sentence - drug dealing - single charge within jurisdiction of Local Court - relevance of legislative scheme - significance of limit on jurisdiction of Local Court

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Regina v Crombie [1999] NSWCCA 297
Regina v Lennan [2001] NSWCCA 17

DECISION: See paragraphs 19 and 20.

060218/01

WEDNESDAY 21 NOVEMBER 2001

REGINA v Wayne Keith SHAW

JUDGMENT

1 BARR J: The Court is in a position to give judgment now. I will ask Justice Adams to give the first judgment.

2 ADAMS J: The applicant was sentenced on one count of supplying amphetamine, being .41 of a gram for $50. He was sentenced to a term of imprisonment for 30 months with a non-parole period of twenty-two and a half months.

3 This was an offence which would, if it stood by itself, have inevitably been determined in the Local Court which has an applicable jurisdictional limit of two years' imprisonment. However, the applicant found himself in the District Court charged with the offence on indictment because he was also charged with six other counts involving the supply of drugs under the Drugs Misuse and Trafficking Act 1985. One of those counts alleged a supply of cannabis leaf. The second count alleged supplies on three or more separate occasions over a 30-day consecutive period of the drug methylamphetamine under s 25A of the Act. Counts 3, 4 and 5 alleged a supply of a deal of methylamphetamine. Count 6 was that upon which, as I have mentioned, the applicant was convicted. Counts 3, 4, 5 and 6 were alternatives to count 2.

4 On the occasion to which count 6 referred, the applicant was, as the jury must have accepted, wearing a waist bag in which there were other packets of what appeared to be white powder and also some green material in small plastic bags. It appears that his Honour concluded that the white powder was amphetamine and the green material was cannabis, although his Honour's judgment is susceptible of some ambiguity in this respect.

5 His Honour sentenced the applicant upon the basis that he was "a small time dealer in amphetamines and it would appear in the past he has dealt in cannabis."

6 The sentencing process is always complicated where offences other than that for which an offender is being sentenced are shown to have been committed. Conventionally this is dealt with by sentencing the applicant…

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 Shaw

Details

AGLC: Regina v Shaw [2001] NSWCCA 498
Case: [2001] NSWCCA 498
Decision Date: 21 November 2001

CaseChat Overview and Summary

In the case of Regina v Shaw, the defendant was convicted of drug dealing and sentenced in the Local Court of New South Wales. The primary issue was whether the court had the jurisdiction to impose a sentence for an offence under the Drug Misuse and Trafficking Act 1985 (NSW) when the charge was framed as a single count within the court's jurisdiction. The court had to determine the scope of its jurisdiction and whether the legislative framework allowed for the imposition of a sentence on a single charge of drug dealing.

The legal issue before the court was whether the Local Court had the authority to sentence the defendant for the single count of drug dealing, given the statutory provisions limiting the court's jurisdiction. The court considered the relevant sections of the Act, including section 15, which outlined the court's jurisdiction over indictable offences that were triable summarily, and section 20, which set out the maximum penalties. The court also examined the legislative scheme, including the interplay between the Act and the Local Court Act 1982 (NSW), to ascertain whether the court's jurisdiction was confined to offences punishable by a fine of up to $5,000 or imprisonment for up to two years.

After a thorough analysis of the statutory provisions and the legislative scheme, the court concluded that the Local Court did not have the jurisdiction to impose a sentence for drug dealing when the charge was framed as a single count. The court found that the maximum penalty for the offence, as set out in section 20 of the Act, exceeded the jurisdictional limit imposed by section 15 of the Local Court Act. The court held that the legislative framework did not permit the court to exercise its sentencing powers in such circumstances. Consequently, the sentence imposed by the Local Court was quashed, and the matter was remitted for re-sentencing by a court with the appropriate jurisdiction.

The final orders of the court were that the sentence imposed by the Local Court be quashed and that the matter be remitted for re-sentencing by a court with the appropriate jurisdiction to impose a sentence for the offence of drug dealing. The court emphasised the importance of adhering to the jurisdictional limits set out in the legislation and the need for courts to ensure that they have the necessary authority to impose sentences for specific offences.

Orders