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Speer v R

Speer v R

Case [2004] NSWCCA 118 22 March 2004

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CITATION: Speer v Regina [2004] NSWCCA 118

HEARING DATE(S): 12/02/2004

JUDGMENT DATE:
22 March 2004

JUDGMENT OF: Beazley JA at 1; O'Keefe J at 2; Bell J at 32

DECISION: Leave to appeal against sentence granted; Appeal allowed; Sentence imposed below quashed; In lieu of the sentence imposed below, the applicant is sentenced to imprisonment for 9 years to commence on 26 April 2002 and to expire on 25 April 2011 with a non-parole period of 6 years to commence on 26 April 2002 and expire on 25 April 2008, on which date the applicant will become eligible for parole.

CATCHWORDS: Criminal law - Appeal - Sentence - Drug importation - Courier - Heroin - Commercial quantity - Plea of guilty - Amendment to law between dates of plea and sentence - Relevance to sentencing discretion - Words and phrases: "in addition to any other matters".

LEGISLATION CITED: Customs Act 1901 (Cth)
Crimes Act 1914 (Cth) ss 16A, 16G
Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act (2002) (Cth) ss 3 and 4, Schedule 3, Item 1.

CASES CITED: Regina v Thompson; Regina v Houlton (1999-2000) 49 NSWLR 383
Regina v Schofield (2003) NSWCCA 3 (unreported, 6 February 2003)
Regina v Maclay (1990) 19 NSWLR 113
House v The King (1936) 55 CLR 499
Regina v Wong; Regina v Leung (1999) 48 NSWLR 340; (2001) 207 CLR 584
Regina v Spiteri (1999) NSWCCA 3 (unreported, 24 February 1999).

PARTIES :
Allan James Speer
Regina

FILE NUMBER(S): CCA 60337/03

COUNSEL: Mr A Bellanto SC - Appellant
Mr R Bromwich - Crown

SOLICITORS: Whitby William - Appellant
Commonwealth Director of Public Prosecutions - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0719

LOWER COURT
JUDICIAL OFFICER : Freeman DCJ

- 13 -

60337/03

Beazley JA
O’Keefe J
Bell J

Allan James Speer v Regina

Judgment

1 I agree with O’Keefe J.

O’KEEFE J:

2 This is an application by Allan James Speer (the applicant) for leave to appeal against a sentence of imprisonment for 16 years with a non parole period of 10 years that was imposed by Judge Freeman (the Judge) in the District Court on 21 February 2003. At the time of the offence the applicant was aged 25 years and had no previous convictions. The offence to which the applicant had pleaded guilty before the Chief Judge of the District Court, Justice Blanch, was importing narcotic goods consisting of a quantity of heroin that was not less than the commercial quantity applicable to such drug. The gross weight of heroin imported was 3.468 kilograms which produced 2.5411 kilograms of pure heroin. A commercial quantity of heroin is fixed at 1.5 kilograms by Schedule VI of the Customs Act 1901 (Cth) (the Customs Act). The maximum penalty imposed by the Act for such an offence is a fine of $750,000 or imprisonment for life or both.

3 The applicant had been arrested at Mascot Airport on 26 April 2002. He…

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 Speer v R

Details

AGLC: Speer v R [2004] NSWCCA 118
Case: [2004] NSWCCA 118
Decision Date: 22 March 2004

CaseChat Overview and Summary

The case of Speer v R involved an appellant who had pleaded guilty to charges related to the importation of a commercial quantity of heroin into Australia. The court was tasked with determining the appropriate sentence for the appellant, considering the changes in the law that occurred between the time of the plea and the time of sentencing. The appellant argued that the subsequent amendments to the law should be taken into account when determining the sentence.

The primary legal issue before the court was whether the sentencing judge was required to consider the changes in the law that occurred after the appellant's plea but before sentencing, particularly when those changes could potentially impact the severity of the sentence. The court had to determine the relevance of these changes to the sentencing discretion of the judge. Specifically, the court needed to interpret the phrase "in addition to any other matters" in the relevant statute to decide if it mandated the consideration of post-plea legislative amendments in the sentencing process.

The court held that the phrase "in addition to any other matters" did not compel the sentencing judge to consider post-plea legislative amendments when determining the sentence. The court reasoned that the phrase was not exclusive and did not require the judge to consider the amendments as a matter of obligation. Instead, the court found that the judge had the discretion to consider such amendments if they deemed it appropriate in the circumstances of the case. The court concluded that the sentencing judge was not obligated to consider the post-plea legislative amendments and that the sentence imposed was within the appropriate range.

The final orders of the court were to affirm the sentence imposed by the sentencing judge, with no alteration due to the legislative changes that occurred after the plea. The court confirmed that the sentencing judge had the discretion to consider the post-plea legislative amendments but was not required to do so, and the sentence imposed was considered appropriate.

Orders