Regina v Wayne Raymond MOULE - [2003] NSWCCA 29

CITATION: REGINA v Wayne Raymond MOULE [2003] NSWCCA 29

HEARING DATE(S): 24/2/03

JUDGMENT DATE:
28 February 2003

JUDGMENT OF: Bell J at 1

DECISION: Appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Drug Court Act 1998
Drug Misuse and Trafficking Act 1985
Poisons and Therapeutic Goods Act 1966

CASES CITED: Lowe v The Queen (1984) 154 CLR 606
R v Alexander (2000) 118 A Crim R 350
R v Readman (1990) 47 A Crim R 181

PARTIES :
Regina
Wayne Raymond MOULE (Applicant)

FILE NUMBER(S): CCA 60495/02

COUNSEL: RA Hulme SC (Crown)
No appearance by unrepresented applicant

SOLICITORS: SE O'Connor
No appearance by unrepresented applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2001/0106

LOWER COURT
JUDICIAL OFFICER : Milson DCJ

60495/02

BELL J
Friday 28 February 2003

REGINA v Wayne Raymond MOULE

Judgment

1 BELL J: This is an appeal brought pursuant to s 5AF and s 5AA of the Criminal Appeal Act 1912 against sentences imposed upon the appellant in the Drug Court on 19 June 2002.

2 Appeals brought pursuant to s 5AF of the Criminal Appeal Act are heard by a single judge of the Supreme Court exercising the power of the Court of Criminal Appeal to hear and determine appeals under the section. The nature of these appeals was discussed by Whealy J in R v Alexander (2000) 118 A Crim R 350.

3 The appeal was listed for hearing on Monday 24 February 2003. On that date when the matter was called on there was no appearance by the appellant. I was informed by the Crown that the appellant had been released on parole a matter of days earlier. An examination of the Registry file showed a document, purportedly signed by the appellant while in custody, containing an acknowledgement of receipt of a notice of the date fixed for hearing. I was also informed that the Crown had sent a letter to the appellant, enclosing a copy of the Crown Prosecutor’s written submissions, to an address which had been given by the appellant to the Probation and Parole Service as his place of residence. That letter included reference to the date fixed for the hearing of this appeal.

4 I did not proceed to deal with the appeal on the day fixed for hearing. I stood the matter over to today noting the Crown’s undertaking to make further efforts to contact the appellant by letter and to inform him of the adjourned date.

5 The Crown Prosecutor has informed me that at his request Senior Constable Portelli attended the address notified by the appellant to the Probation and Parole Service on the evening of 25 February 2003 where he spoke with a person who identified himself as the appellant’s uncle. This person did not know of the appellant’s present whereabouts.

6 I was further informed of inquiries that had been made by the Crown of the Probation and Parole Service. The appellant has not attended for interviews with that…

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 Wayne Raymond MOULE

Details

AGLC: Regina v Wayne Raymond MOULE [2003] NSWCCA 29
Case: [2003] NSWCCA 29
Decision Date: 28 February 2003

CaseChat Overview and Summary

Wayne Raymond Moule appealed against his sentences imposed by the Drug Court on 19 June 2002, which were for six offences committed on 11 February 2001, and two additional offences committed during his participation in the Drug Court program. The appeal was heard by Bell J in the Court of Criminal Appeal. The appellant, represented by himself, challenged the sentences imposed on the basis of disparity with those of his co-offender, Anne Keating, and sought to argue that the non-parole periods were inadequate. The Crown argued that the sentences were within the range of legitimate sentencing discretion.

The primary legal issues were whether the sentences imposed by Judge Milson were manifestly excessive or inadequate and whether there were justifiable grounds for the disparity in sentences between the appellant and his co-offender. Bell J examined the nature of the appellant's participation in the Drug Court program, his criminal history, and the aggravating factor of committing the offences while on parole. The Court also considered the principle that co-offenders should receive similar sentences if other things are equal, but acknowledged that circumstances can differ.

Bell J concluded that Judge Milson's sentences, which included a non-parole period of nine months for the primary offences, exhibited considerable leniency given the appellant's history of disobedience to the law and the fact that the offences were committed while on parole. The Court found no basis to reduce the sentences or extend the non-parole periods. The appellant's claim of grievance due to the disparity in sentences was rejected as the differences in criminal history and the parole status justified the disparity.

Bell J dismissed the appeal, affirming the sentences imposed by Judge Milson in the Drug Court. The appellant's argument that Judge Milson should have found special circumstances to depart from the statutory proportion was deemed hopeless. The sentences imposed were deemed appropriate and not manifestly excessive or inadequate.

Orders