Regina v X, Regina v Y - [2002] NSWCCA 40

Reported Decision:
(2002) 130 A Crim R 153

New South Wales

Court of Criminal Appeal

CITATION: Regina v X, Regina v Y [2002] NSWCCA 40

FILE NUMBER(S): CCA 60291/01; 60320/01; 60321/01

HEARING DATE(S): 3 September 2001

JUDGMENT DATE:
26 February 2002

PARTIES :

Regina v X, Regina v Y

JUDGMENT OF: Bell J at 1; Howie J at 2; Smart AJ at 18

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0539; 00/11/0540

LOWER COURT JUDICIAL
OFFICER : Mitchelmore ADCJ

COUNSEL : (C) D Fagan SC
(X) R Hoenig
(Y) S J Odgers SC

SOLICITORS: (C) Cwth DPP
[X] M Rumore
[Y] Jeffreys & Associates]

DECISION: See paras 75-81 of judgment

60291/01

60320/01

60321/01

BELL J

HOWIE J

SMART AJ

Tuesday 26 February 2002

NON-PUBLICATION

REGINA v X

REGINA v Y

JUDGMENT

1 BELL J: I agree with the orders proposed by Smart AJ for the reasons that his Honour gives.

2 HOWIE J: I have had the very great benefit of reading in draft the judgments in these matters prepared by Smart AJ. I gratefully adopt his summary of the facts and the principles to be applied in determining the appropriate sentences for each of the respondents.

3 I agree with Smart AJ that in the case of each of the respondents the appeals should be allowed and the sentences increased. However, I cannot agree with his Honour’s decision that in each case the non-parole period should remain unaffected. I would increase them. I appreciate that I am in the minority in this view and, therefore, will give my reasons briefly.

4 In my opinion, the sentences imposed by the sentencing judge failed to a very significant degree to reflect the objective seriousness of the offences, the extent of the respondents’ criminality in the scheme to import large quantities of drugs into Australia, the need to denounce such activity which so significantly imperils this community, and the need for general deterrence. Whatever the subjective circumstances of the respondents, however significant be the assistance given and proffered by them and notwithstanding the difficult circumstances of the custody they face as a result of the assistance given by them, the total sentences imposed and particularly the non-parole periods specified were, in my respectful opinion, inadequate to properly punish them for what they did.

5 In my opinion a discount of the extent granted to the respondents is appropriate only in the most exceptional case. Whether it is an exceptional case is not determined only upon an assessment of the assistance granted or the consequence of that assistance. The determination of whether a particular case is so exceptional as to justify the reduction of the otherwise appropriate sentence by more than half cannot be considered in isolation from a proper regard to the offence committed or the need for general deterrence. A failure to do so is likely to result in a sentence that is inadequate to a significant degree. Encouragement of offenders to co-operate is one thing: the passing…

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: [2002] NSWCCA 40
Decision Date: 26 February 2002

CaseChat Overview and Summary

This case was an appeal by the Crown against the adequacy of sentences imposed on two individuals, X and Y, who had been convicted of conspiracy to import commercial quantities of cocaine and ecstasy into Australia. The appeal was heard by the New South Wales Court of Criminal Appeal, and the decision was reported as Regina v X, Regina v Y [2002] NSWCCA 40. The primary issue before the Court was whether the sentences imposed by the sentencing judge were adequate in light of the objective criminality of the offences and the need for general deterrence. The Crown argued that the sentences were manifestly inadequate and did not reflect the seriousness of the offences, the extent of the criminality, and the need for general deterrence. The Court agreed with the Crown and found that the sentences imposed by the sentencing judge were inadequate and increased the head sentences for both X and Y. However, the Court disagreed with the Crown's submission that the non-parole periods should also be increased. The Court held that the difference between the lowest permissible non-parole period and the non-parole period fixed by the sentencing judge was not significant enough to warrant intervention, especially considering the severe conditions of imprisonment in special protection and the factor of double jeopardy. The Court ultimately allowed the Crown's appeal in part and increased the head sentences for both X and Y, while dismissing the appeal against the non-parole periods. The Court also ordered that no material identifying X or Y be published due to the substantial risk of danger to their lives if publication occurred.

Orders