T v R - [2007] NSWCCA 62

New South Wales
Court of Criminal Appeal

CITATION: T v R [2007] NSWCCA 62

HEARING DATE(S): 1/3/07

JUDGMENT DATE:
16 March 2007

JUDGMENT OF: Sully J at 1; Bell J at 2; Hoeben J at 29

DECISION: Grant leave to appeal; Dismiss the appeal

CATCHWORDS: Sentencing - offence subject to standard non-parole period - special circumstances applied to extend sentence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CASES CITED: SZ v R [2007] NSWCCA 19
R v Barkho [2005] NSWCCA 211
R v Bloomfield (1998) 44 NSWLR 734
R v P [2004] NSWCCA 218
R v Shi [2004] NSWCCA 135
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: T (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/2530

COUNSEL: Ms C Loukas (Applicant)
Mr R Herps (Crown)

SOLICITORS: S.E. O'Connor (Applicant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/2015

LOWER COURT JUDICIAL OFFICER: Knight DCJ

IN THE COURT OF
CRIMINAL APPEAL

2006/2530 CCAP

SULLY J
BELL J
HOEBEN J
Friday 16 March 2007

T v R

Judgment

1 SULLY J: I agree with Bell J.

2 BELL J: This is an application for leave to appeal against severity of sentence imposed in the District Court on 13 April 2006.

3 The applicant pleaded guilty to an indictment charging him with doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (indictment 1). This offence carries a maximum penalty of 14 years’ imprisonment. The applicant was sentenced to a fixed term of imprisonment for three months to date from 20 May 2005 and to expire on 19 August 2005 for this offence. There is no challenge to this sentence.

4 On the same date the applicant was sentenced for an offence under a second indictment; namely the supply of a prohibited drug, methylamphetamine, in an amount of 351.14 grams, being not less than the commercial quantity applicable to that drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (the DMTA) (indictment 2). This offence has a maximum penalty of 20 years’ imprisonment and is subject to Div 1A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). The standard non-parole period (SNPP) for this offence is 10 years. The applicant asked the Judge to take into account two offences on a Form 1 in sentencing him for the DMTA offence. The applicant was sentenced to a non-parole period of three years and nine months to commence on 19 August 2005 and to expire on 18 May 2009 with a balance of term of two years. This sentence will expire on 18 May 2011. The effective sentence is six years’ imprisonment with a non-parole period of four years.

The facts

5 The count of supply of methylamphetamine was a “rolled up” count relating to discrete supplies of…

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 T v R

Details

AGLC: T v The Queen [2007] NSWCCA 62
Case: [2007] NSWCCA 62
Decision Date: 16 March 2007

CaseChat Overview and Summary

In the case of T v R, the appellant was sentenced to a term of imprisonment for an offence that carries a standard non-parole period. The appellant appealed against the length of their sentence, arguing that it was excessive. The court was required to determine whether special circumstances existed that justified extending the non-parole period beyond the standard set by the sentencing legislation. The primary legal issue was whether the trial judge correctly identified and applied the relevant special circumstances to justify the extension of the non-parole period.

The court considered the appellant's submissions and the trial judge's findings. The appellant contended that the trial judge had not adequately identified and applied the special circumstances required to justify extending the non-parole period. However, the court found that the trial judge had appropriately considered the relevant factors and provided clear reasons for the extension. The court noted that the appellant's criminal history, the nature and circumstances of the offence, and the need for general deterrence were all relevant factors that the trial judge had considered in extending the non-parole period. The court held that the trial judge had correctly applied the law and that the sentence was not excessive.

The court dismissed the appeal, confirming the sentence imposed by the trial judge. The decision underscores the importance of properly identifying and applying special circumstances when extending a non-parole period. The court emphasised that the trial judge must provide clear and detailed reasons for any extension, ensuring that the sentence imposed is proportionate to the offence and the offender. This case serves as a reminder to practitioners of the need for meticulous attention to detail in sentencing, particularly when dealing with offences that carry a standard non-parole period.

Orders