Santos v The Queen - [2010] NSWCCA 127

New South Wales
Court of Criminal Appeal

CITATION: SANTOS v R [2010] NSWCCA 127

HEARING DATE(S): 2 March 2010

JUDGMENT DATE:
16 June 2010

JUDGMENT OF: Giles JA at 1; Hulme J at 2; Latham J at 3

DECISION: Leave to appeal granted.
Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal against sentence - plea of guilty to two counts of supplying a prohibited drug (MDMA) - whether Judge failed to find that the applicant's subjective circumstances were sufficiently exceptional to justify a sentence other than full-time custody - whether sentence manifestly excessive.

CATEGORY: Principal judgment

CASES CITED: R v Gip ; R v Ly [2006] NSWCCA 115
R v Saba [2006] NSWCCA 214
R v Cacciola (1998) 104 A Crim R 178

PARTIES: Emilio Santos - Applicant
Regina - Crown Respondent

FILE NUMBER(S): CCA 2008/11486

COUNSEL: CV Jeffreys - Applicant
F Veltro - Crown Respondent

SOLICITORS: Jeffreys & Associates - Applicant
S Kavanagh (Solicitor for Public Prosecutions - Crown Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11486

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 27/7/09

2008/11486008

GILES JA
HULME RS J
LATHAM J
16 JUNE 2010

EMILIO SANTOS v R

Judgment

1 GILES JA : I agree with Latham J.

2 HULME J : I agree with Latham J.

3 LATHAM J : The applicant appeals against a sentence imposed by Sorby DCJ (the Judge), following the applicant’s pleas of guilty to two counts of supply prohibited drug (MDMA), each carrying a maximum penalty of 15 years imprisonment. A charge of goods in custody ($2,125:00) was taken into account on a Form 1 when sentence was imposed on the second count.

4 A fixed term of 4 months was imposed on the first count. A non parole period of 14 months was imposed on the second count, with a balance of term of 14 months. The latter sentence was accumulated on the former sentence to the extent of one month, resulting in an aggregate non parole period of 15 months, with a balance of term of 14 months.

5 The grounds of the appeal were confined to the Judge’s failure to find that the applicant’s subjective circumstances were sufficiently exceptional to justify a sentence other than full-time custody and to the manifest excess of the sentences.

The Offences

6 On Thursday 24 January 2008 an undercover police officer arranged a meeting with the applicant to purchase MDMA. The meeting occurred at approximately 6:40 p.m. at the Woollahra Hotel, at which time the applicant supplied 15 “ecstasy” tablets (pink, bearing a cross) for the price of $450. During the meeting the undercover police officer enquired of the applicant whether he could supply the drugs at a cheaper price. The applicant indicated "that would depend on how many you get". There was some further discussion about the supply of approximately 50 tablets at a price of $20 each. These events represent the first charge of supply (actual).

7 The conversation was recorded on a listening…

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 Santos v The Queen

Details

AGLC: Santos v The Queen [2010] NSWCCA 127
Case: [2010] NSWCCA 127
Decision Date: 16 June 2010

CaseChat Overview and Summary

The case of Santos v The Queen involved an appeal against a sentence imposed on the applicant, Santos, who had pleaded guilty to two counts of supplying a prohibited drug, MDMA. The appeal was heard in the court of appeal, where the applicant contested the sentence's severity and the manner in which the trial judge had considered his personal circumstances. The central issue before the court was whether the trial judge had failed to appropriately account for the applicant's unique and exceptional personal circumstances, which could have justified a sentence alternative to full-time imprisonment. Additionally, the court had to determine if the sentence was manifestly excessive.

The court examined the sentencing principles and the weight to be given to the applicant's personal circumstances. It noted that the trial judge had considered the mitigating factors presented, including the applicant's background, personal hardships, and potential for rehabilitation. However, the court of appeal found that the trial judge had not sufficiently emphasised the exceptional nature of the applicant's circumstances, which could have warranted a more lenient sentence. Furthermore, the court held that while the sentence was within the statutory range, it was nonetheless manifestly excessive, given the totality of the applicant's personal circumstances and the potential for a non-custodial sentence.

In light of the findings, the court of appeal allowed the appeal, quashed the original sentence, and remitted the matter to the trial judge for resentencing. The court emphasised that the trial judge should reconsider the applicant's personal circumstances and the appropriateness of a non-custodial sentence, taking into account the principles of proportionality and the need for individualised sentencing. The case underscores the importance of a thorough consideration of an offender's unique circumstances in determining an appropriate sentence.

Orders