Regina v Tipler - [2000] NSWCCA 382

CITATION: Regina v Tipler [2000] NSWCCA 382

FILE NUMBER(S): CCA 60627/99

HEARING DATE(S): 2/8/00

JUDGMENT DATE:
2 August 2000

PARTIES :

The Crown
Daniel Henry Tipler (Appl)

JUDGMENT OF: Newman J at 1; Sperling J at 18

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0322
99/31/0323

LOWER COURT JUDICIAL
OFFICER : Howie DCJ

COUNSEL : R D Ellis (Crown)
L Flannery (Appl)

SOLICITORS: S E O'Connor (Crown)
T A Murphy (Appl)

LEGISLATION CITED: Drug Misuse and Trafficking Act 1986

CASES CITED:
R v Lowe (1984) 154 CLR 606
R v Postiglione (1997) 189 CLR 295
R v Doggett, unreported, Court of Criminal Appeal, 24 March 1997

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60627/99

NEWMAN J
SPERLING J

WEDNESDAY, 2 AUGUST 2000

REGINA v Daniel Henry TIPLER

JUDGMENT

1 NEWMAN J: This is an application for leave to appeal against a sentence passed in the Port Macquarie District Court by Howie DCJ. Before his Honour the applicant had pleaded guilty to supplying a prohibited drug on an ongoing basis contrary to the provisions of s 25A(1) of the Drug Misuse and Trafficking Act 1986. The maximum penalty prescribed by that section is imprisonment for twenty years and/or a fine of three thousand five hundred penalty units. That section is a recent addition to the Drug Misuse and Trafficking Act by the legislature and it is plain from the maximum penalty available that it is an offence which stands high in the criminal calendar of this State.
2    In addition to pleading guilty to the s 25A(1) offence, the applicant asked his Honour to take into account seven matters on a form one, they involve a number of drug matters. In that event, his Honour sentenced the applicant to a head sentence of five years, being constructed by way of a minimum term of two years and nine months and an additional term of two years and three months, his Honour finding special circumstances.
3    The substance involved in the s 25A charge was heroin. The applicant had been apprehended as a consequence of an undercover police operation carried out in the Tamworth area. The undercover operation resulted in the applicant being tape recorded as to his participation in drug trafficking in the Tamworth area and his plea of guilty, which his Honour quite properly took into account in the sentence, was perhaps in the face of a very powerful Crown case in which it would seem he would have great difficulty in raising any defence.
4    The nub of the appeal sought to be brought by the applicant is that he claims that he has a justifiable sense of grievance in that his Honour sentenced another person engaged in the same drug operation in Tamworth to a lesser sentence, a lady by the name of Carter.
5    Miss Carter's matter was in fact dealt with at the same time as that of the applicant by his Honour. His Honour sentenced her to a head sentence…

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 Tipler

Details

AGLC: Regina v Tipler [2000] NSWCCA 382
Case: [2000] NSWCCA 382
Decision Date: 2 August 2000

CaseChat Overview and Summary

The Court of Criminal Appeal in Regina v Tipler [2000] NSWCCA 382 dealt with an application for leave to appeal against a sentence passed by Howie DCJ in the Port Macquarie District Court. Daniel Henry Tipler, the appellant, pleaded guilty to supplying a prohibited drug on an ongoing basis under s 25A(1) of the Drug Misuse and Trafficking Act 1986. The maximum penalty for this offence was imprisonment for twenty years and/or a fine of three thousand five hundred penalty units. Tipler's plea was influenced by the substantial evidence against him from an undercover police operation in Tamworth, where he was recorded participating in drug trafficking. Tipler's appeal focused on the argument that his sentence was disproportionately harsher than that of a co-offender, Carter, who was also involved in the same drug operation in Tamworth.

The legal issues central to the appeal were whether the appellant's sense of grievance about the disparity in sentencing between him and Carter was justifiable, and whether the District Court judge, Howie DCJ, erred in his sentencing. The appeal hinged on the principles of equal justice and the concept of parity in sentencing co-offenders, as articulated by the High Court in R v Lowe and R v Postiglione. The court had to determine whether the differences in the roles and culpability of Tipler and Carter warranted a different sentence and whether the judge's decision to backdate Carter's sentence was reasonable.

The Court of Criminal Appeal found that there was no error in the sentencing process. The judge had correctly assessed Tipler's higher position in the drug trafficking hierarchy compared to Carter, which justified the harsher sentence. Furthermore, the decision to backdate Carter's sentence to the time of her apprehension was seen as an exercise of leniency, considering she was already serving a sentence for breach of recognisance. The Court held that a reasonable mind would not see Tipler's sense of grievance as justified, given the differences in their roles and the judge's rationale for sentencing. The appeal was therefore dismissed, though leave to appeal was granted due to the seriousness of the matter.

Orders