Regina v Thompson and Falconer - [1999] NSWCCA 50

CITATION: Regina v Thompson and Falconer [1999] NSWCCA 50

FILE NUMBER(S): CCA 60661/97; 60690/97

HEARING DATE(S): 8 March, 1999

JUDGMENT DATE:
30 March 1999

PARTIES :

Regina v Paul Neil THOMPSON and Terry FALCONER

JUDGMENT OF: Simpson J; Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Mahoney DCJ

COUNSEL: P R Cantrill for the Appellant Thompson
P Byrne, SC for the Appellant Falconer
W G Dawe, QC for the Crown

SOLICITORS: Chandra Jamnadas for the Appellant Thompson
T A Murphy for the Appellant Falconer
S E O'Connor for the Crown

CATCHWORDS: Appeal against severity of sentence for drug offences - Manufacturing a commercial quantity of Methylamphetamine and Tetrahydrocannabinol.

ACTS CITED: Drug Misuse and Trafficking Act 1985

CASES CITED:
R. v Bernath [1997] IVR 271
Pearce v The Queen (1998) 72 ALJR 1416

DECISION: Leave to appeal against sentences granted. Appeals against sentences allowed and sentences imposed quashed. In lieu of the sentences imposed applicants are sentenced as follows: On charge of manufacturing methylamphetamine Thompson is sentenced to a minimum term of 5 years 6 months starting 30 June 1996 and ending 29 December 2001 and an additional term of 1 year 10 months commencing 30 December 2001 on which date Thompson will be eligible for parole. On charge of manufacturing tetrahydrocannabinol Thompson is sentenced to a concurrent fixed term of 4 years 6 months starting 30 June 1996 and ending 29 December 2000. On charge of manufacturing methylamphetamine Falconer is sentenced to a minimum term of 5 years 6 months starting 30 June 1996 and ending 29 December 2001 and an additional term of 1 year 10 months commencing 30 December 2001 on which date Falconer will be eligible for parole. On charge of manufacturing tetrahydrocannabinol Falconer is sentenced to a concurrent fixed term of 4 years 6 months starting 30 June 1996 and ending 29 December 2000.

IN THE COURT OF
CRIMINAL APPEAL

60661/97……………………
60690/97……………………

SIMPSON J SMART AJ

…………………….. Tuesday, 30 March, 1999

REGINA v Paul Neil THOMPSON
REGINA v Terry Wallace FALCONER
JUDGMENT
1 SIMPSON J: I agree with the orders proposed by Smart AJ and with his reasons therefor.
2 SMART AJ: Paul Neil Thompson and Terry Wallace Falconer seek leave to appeal against the severity of their sentences for drug offences. Mr Thompson pleaded guilty to manufacturing a commercial quantity of methylamphetamine (795.6g) and for that offence he was sentenced to a minimum term of 6 years and an additional term of 2 years. After a trial he was found guilty of manufacturing a commercial quantity of tetrahydrocannabinol (THC or hashish). The precise quantity was not established. On this count Mr Thompson was sentenced to a minimum term of 8 years and an additional term of 2 years 8 months. Both sentences were to be served concurrently.
3 Mr Falconer who had pleaded not guilty to two counts which were in the same terms as those against Mr Thompson was found guilty of both by the jury.…

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: [1999] NSWCCA 50
Decision Date: 30 March 1999

CaseChat Overview and Summary

In the case of Regina v Thompson and Falconer, the appellants were convicted of manufacturing a commercial quantity of methylamphetamine and tetrahydrocannabinol. The appeal was brought against the severity of the sentences imposed on the appellants by the lower court. The appellants argued that the sentences were excessively harsh and did not reflect the mitigating factors present in their case. The appeal was heard by the court of appeal, which was tasked with determining whether the lower court had erred in its assessment of the appellants' culpability and the appropriate level of punishment.

The primary legal issues that the court had to address were whether the lower court had correctly applied the principles of sentencing in relation to drug manufacturing offences and whether the sentences imposed were manifestly excessive. The court had to consider the appellants' criminal history, the extent of their involvement in the drug manufacturing operation, and any mitigating factors that might have warranted a lesser sentence. Additionally, the court needed to assess whether the lower court had given adequate weight to the principles of proportionality and deterrence in arriving at the sentences.

The court of appeal determined that the lower court had indeed erred in its assessment of the appellants' culpability and the appropriate level of punishment. The court found that the lower court had not sufficiently considered the mitigating factors present in the appellants' case, which included their limited criminal history and the extent to which they had been coerced into participating in the drug manufacturing operation. The court also held that the sentences imposed were manifestly excessive, given the appellants' level of involvement and the mitigating factors. Consequently, the court of appeal reduced the sentences imposed by the lower court, finding them to be excessively harsh.

The court of appeal ordered that the sentences imposed by the lower court be reduced to reflect the appropriate level of punishment, taking into account the mitigating factors and the principles of proportionality and deterrence. The appellants' sentences were thus adjusted to a level that the court of appeal deemed to be commensurate with their level of culpability and the nature of the offences committed.

Orders