Starmer v R - [2008] NSWCCA 27

New South Wales
Court of Criminal Appeal

CITATION: Starmer v Regina [2008] NSWCCA 27

HEARING DATE(S): 15 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Simpson J at 18

EX TEMPORE JUDGMENT DATE: 15 February 2008

DECISION: Leave to appeal against sentence granted.
Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Pre-sentence custody - Desirable practice of backdating affirmed - No error in adopting different practice when allowance clearly demonstrated

CATEGORY: Principal judgment

CASES CITED: Assafiri v R [2007] NSWCCA 159
R v Bernier [1998] 102 A Crim R 44
R v Hall [2005] NSWCCA 217
R v Howard [2001] NSWCCA 309
R v McHugh (1985) 1 NSWLR 588
R v Nasher [2005] NSWCCA 238
R v Viana [2001] NSWCCA 171

PARTIES: David Starmer (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3008

COUNSEL: A Francis (Applicant)
P McDonald (Respondent/Crown)

SOLICITORS: Legal Aid Commission (Applicant)
Commonwealth DPP (Respondent/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0665

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

LOWER COURT DATE OF DECISION: 19 January 2007

CCA 2007/3008

McCLELLAN CJ at CL
GROVE J
SIMPSON J
15 February 2008

David STARMER v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Grove J.

2 GROVE J: The applicant appeared for sentence before Tupman DCJ at Sydney District Court where he adhered to a plea of guilty previously made in the Local Court to a charge of conspiracy to import a traffickable quantity of a prohibited drug (cocaine). He was sentenced to imprisonment for three years and ordered to be released on recognizance after serving eighteen months thereof. The scheduled release date is 18 July 2008.

3 At the relevant time the applicant was aged thirty seven and his sister (Nancy) aged thirty three. They were born in England. The applicant acquired Australian citizenship but returned for a time to the United Kingdom and then re-entered Australia in October 2005. His sister, who remained a British citizen, lived in the United Kingdom.

4 As her Honour found, the applicant was a person who used drugs and alcohol and had an addictive personality but otherwise was well regarded, a good employee and a reliable person. He persuaded his sister to become involved in sending him cocaine from the United Kingdom. There was a suggestion that it was cheaper there. The method of transporting the drug was described as unsophisticated. Nancy posted greeting cards containing the drug. They were sent to Nick Kirby, a false name assumed by the applicant, to an address connected with him. In all some eleven cards were despatched.

5 Police investigation had been instituted and telephone calls were lawfully intercepted as well as two of the cards. Her Honour found that a gross amount of 70.4 grams estimated as 32.4 grams pure cocaine was imported. The applicant used some of the drug to feed his own habit and sold some to friends and work colleagues and used some for rent payment. He had…

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 Starmer v R

Details

AGLC: Starmer v R [2008] NSWCCA 27
Case: [2008] NSWCCA 27
Decision Date: 15 February 2008

CaseChat Overview and Summary

The case before the court was Starmer v R, where the respondent, Starmer, appealed against his sentence. The dispute involved the timing of pre-sentence custody and its effect on the overall sentence. The High Court of Australia heard the case. The central legal issue was whether the trial judge erred in not backdating Starmer's pre-sentence custody to the date he first entered custody. The respondent argued that the trial judge's decision not to backdate his custody period was an error that inflated the perceived length of his sentence.

The court examined the established legal principles regarding the backdating of pre-sentence custody. It noted that while it is generally desirable to backdate pre-sentence custody to the date of initial custody, this is not an absolute rule. The court found that the trial judge did not make an error by not backdating Starmer's custody period. The trial judge had considered the specific circumstances of the case and decided that backdating was not appropriate given the particular facts. The court held that the trial judge's decision was well within the bounds of acceptable judicial discretion, especially as the trial judge had clearly allowed for the period of custody in the sentencing determination.

In affirming the trial judge's decision, the court emphasised the importance of context in determining the appropriate treatment of pre-sentence custody. The court concluded that the trial judge had adequately considered the relevant factors and did not err in his approach. The appeal was dismissed, and the original sentence was upheld. The court's decision underscores the principle that while backdating is generally desirable, it is not mandatory, and trial judges retain the discretion to decide on a case-by-case basis.

Orders