Takiari v The Queen - [2009] NSWCCA 84

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Takiari v R [2009] NSWCCA 84

FILE NUMBER(S):
2007/13155
2007/12567

HEARING DATE(S):
25 March 2009

JUDGMENT DATE:
31 March 2009

PARTIES:
Noel Aaron Takiari (Applicant)
Duane Turei Takiari (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Buddin J Rothman J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/21/3203 (Noel), 07/21/3204 (Duane)

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
14 February 2008

COUNSEL:
P Winch (Applicant Noel)
A Cook SC (Applicant Duane)
P Leask (Respondent)

SOLICITORS:
Wells Yates and Associates (Applicant Noel)
S O'Connor (Legal Aid Commission) (Applicant Duane)
S Kavanagh (Solicitor for Public Prosecutions)

CATCHWORDS:
Criminal Law - sentence - possession of a precursor intended to be used in the manufacture of methylamphetamine - theft of property as a clerk - whether features of the case impermissibly used as aggravating factors - parity - totality

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CATEGORY:
Principal judgment

CASES CITED:
Bowden v R [2009] NSWCCA 45
Elyard v R [2006] NSWCCA 43
Hewitt v R (2007) 180 A Crim R 306
Natoli v R [2009] NSWCCA 36
Reaburn v R (2007) 169 A Crim R 337
R v Cousins (2002) 132 A Crim R 444
R v Yildiz (2006) 160 A Crim R 218

TEXTS CITED:

DECISION:
Leave to appeal granted. Appeals dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/13155
2007/12567
McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J
TUESDAY 31 MARCH 2009

NOEL AARON TAKIARI v R; DUANE TUREI TAKIARI v R

Judgment

McCLELLAN CJ at CL: I agree with Buddin J
BUDDIN J:
Introduction
The applicants Noel Aaron Takiari (whom I shall refer to as NAT) and his brother Duane Turei Takiari (whom I shall refer to as DTT) seek leave to appeal against sentences imposed upon them in the District Court. The applications have, for reasons of convenience, been heard together.
A joint indictment containing four counts was presented against the applicants who entered pleas of guilty to the various counts alleged against them. Count 1 alleged that on 4 September 2006 DTT stole property as a clerk (being 5,456 packets of cold and flu tablets and 1,968 Neutrogena cosmetic products). Count 2 alleged that on 15 September 2006 each of the applicants possessed a precursor (being 106,656 tablets of pseudoephedrine) intended to be used in the manufacture of methylamphetamine. Count 3 alleged that on the same day each of the applicants attempted to dispose of stolen property (being 4,444 packets of cold and flu tablets). Count 4 alleged that on the same day DTT possessed a precursor (being 24,288 tablets of pseudoephedrine) intended to be used in the manufacture of methylamphetamine. NAT also asked that a further offence of goods in custody, which was on a Form 1 document, be taken into account on sentencing. Each of the four counts attracted a maximum penalty of 10 years imprisonment although in respect of counts 2 and 4, a…

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 Takiari v The Queen

Details

AGLC: Takiari v The Queen [2009] NSWCCA 84
Case: [2009] NSWCCA 84
Decision Date: 31 March 2009

CaseChat Overview and Summary

The applicants, NAT and DTT, were convicted of various drug-related offences and appealed against their sentences. The appeal was heard in the High Court of Australia. The primary legal issue before the Court was whether certain features of the case were impermissibly used as aggravating factors in the sentencing process. Specifically, the applicants argued that the trial judge had considered matters that did not properly fall within the scope of aggravating factors under the sentencing principles. The Court needed to determine if the trial judge's consideration of these factors led to an unjust or disproportionate sentence.

The High Court held that the trial judge did not err in considering the totality of the offending and the circumstances surrounding it, including the role of each applicant and the planning involved. The Court emphasised that sentencing judges must consider the totality of the offending and the circumstances, including the planning and execution of the crime. However, the Court noted that not all features of the case can be considered as aggravating factors. The Court found that the trial judge appropriately balanced the aggravating and mitigating factors, ensuring that the sentences were proportionate and consistent with the principles of parity and totality. The High Court ultimately dismissed the appeals, upholding the sentences imposed by the trial judge.

In light of the above, the Court made no orders altering the sentences imposed by the trial judge. The applicants' sentences for their respective offences remained unchanged, reflecting the totality of their offending and the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

In respect of count 2, and taking into account the Form 1 matter, NAT received a non-parole period of 3 years with a total term of imprisonment of 5 years. In respect of count 3, a wholly concurrent term of 12 months imprisonment was fixed. His total effective sentence for the two offences is thus one of 5 years imprisonment with a non-parole period of 3 years. In respect of count 1, DTT received a sentence of 18 months. In respect of count 2, he received a non-parole period of 2 years 6 months with a total term of imprisonment of 4 years 6 months. That sentence was wholly accumulated upon the sentence imposed in respect of count 1. In respect of count 3, he received a sentence of 12 months imprisonment which was wholly concurrent with the sentence imposed in respect of count 1. In respect of count 4, he received a sentence of 12 months which was wholly subsumed within the sentences imposed in respect of counts 1 and 2. His total effective sentence for the four offences is thus one of 6 years imprisonment with a non-parole period of 4 years.Factual background As there is no dispute about the facts, they can be briefly stated. A police investigation commenced on 13 September 2006 after an Assistant Commissioner of Police granted a controlled operation authority in relation to the supply of pseudoephedrine tablets by NAT and his associates. Around 1 pm on 14 September a police undercover operative (UCO) made contact with NAT via his mobile phone. NAT and the UCO had a discussion about the sale of 30 cartons of pseudoephedrine based cold and flu tablets. NAT indicated that he had 30 cartons for sale and that he wanted $2,000 for each carton making a total of $60,000. NAT agreed to have a further meeting with the UCO the following morning. Around 10 am the following morning, 15 September, the UCO rang NAT. They arranged to meet a short time later at a coffee shop in the Stocklands Mall at Wetherill Park. After meeting at the coffee shop, NAT then went to a vehicle where he showed the UCO a sample of the cold and flu tablets. The sample consisted of one packet of Orthoxicol cold and flu tablets. A price of $60,000 was agreed upon and the parties arranged to meet up again in order to complete the transaction. During the course of the conversation with the UCO, NAT admitted knowing what the pseudoephedrine was to be used for. He went on to explain to the UCO about how to extract the pseudoephedrine from the tablets and also explained to him about the “cooking” of amphetamines. At around 1 pm that day NAT met the UCO in the car park of the Kennards self-storage centre on the Horsley Drive at Wetherill Park. NAT had 5 Kennards storage boxes in his vehicle which contained the equivalent of 15 cartons of cold and flu tablets. Another UCO then attended the car park with $60,000 in cash. NAT looked at the money and then made a phone call to DTT. DTT arrived shortly thereafter with another 5 Kennards boxes containing the remaining cartons of the cold and flu tablets. The UCO spoke to DTT and then had a look at the items. Police attended the area and the applicants were then arrested.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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