Tapai v Regina - [2009] NSWCCA 246

New South Wales
Court of Criminal Appeal

CITATION: Tapai v Regina [2009] NSWCCA 246

HEARING DATE(S): 16 September 2009

JUDGMENT DATE:
16 September 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 39; Grove J at 40

DECISION: 1 Extend time for filing notice of an application for leave to appeal up to and including 28 May 2009.
2 Grant leave to appeal.
3 Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - relevant factors - parity between co-offenders - may consider sentencing reasons for co-offender but not whether that sentence manifestly excessive or inadequate. - CRIMINAL LAW - sentence - sentencing procedure - factual basis for sentence - role of guilty plea or depositions - discount for utilitarian value - remorse and contrition encompassed by plea discount - s 21A Crimes (Sentencing Procedure) Act 1999. - CRIMINAL LAW - sentence - non-parole period or minimum term - New South Wales - aggravating or mitigating factors - fact that aggravating factors which might be present in other cases were not present does not detract from significance of other elements of aggravation. - CRIMINAL LAW - sentence - sentencing procedure - sentencing statistics, schedules, tariffs, comparisons, etc - statistics of limited use when based on limited data.

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

CASES CITED: Hutton v Queen [2008] NSWCCA 99
Kite v R [2009] NSWCCA 12
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218

PARTIES: Gorica Tapai (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/15232

COUNSEL: M Ramage QC (Appellant)
F Veltro (Respondent)

SOLICITORS: Slattery Thompson (Appellant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2711171

LOWER COURT JUDICIAL OFFICER: Toner DCJ

LOWER COURT DATE OF DECISION: 4 July 2008

- 3 -

CCA 2007/15232003

SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J

Wednesday 16 September 2009

Gorica Tapai v Regina

Judgment

1 SPIGELMAN CJ: The applicant pleaded guilty on the first day of the trial to one count of supplying a commercial quantity of a prohibited drug, namely cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The applicant was sentenced on Friday 4 July 2008.

2 The notice of application for leave to appeal was received in this Court on 28 May 2009. The applicant applies for an extension of time on the basis that the transcript of the sentencing hearing was only received by the applicant’s solicitor in late May 2009. This is not contested. The Crown does not oppose an order for an extension of time. The Court should order that time for filing notice of an application for leave to appeal should be extended up to and including 28 May 2009.

3 The facts were not in issue before the sentencing judge. His Honour summed-up the facts as follows:

“In December 2006 the State Crime Command Drug Squad commenced an investigation into…

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 Tapai v Regina

Details

AGLC: Tapai v Regina [2009] NSWCCA 246
Case: [2009] NSWCCA 246
Decision Date: 16 September 2009

CaseChat Overview and Summary

In the case of Tapai v Regina, the defendant appealed against his sentence, which was imposed after a conviction for drug trafficking. The High Court of Australia was tasked with determining whether the sentencing judge had correctly applied the principles and factors relevant to the imposition of a sentence. Specifically, the court had to consider whether the sentencing judge adequately took into account the relevant factors, including the parity between co-offenders, the plea discount, and the non-parole period.

The primary legal issues centred on the principles and procedures applicable to sentencing. The defendant argued that the sentencing judge had failed to properly consider the disparity between his sentence and that of his co-offender, and whether the sentence was manifestly excessive or inadequate. The court had to determine whether it was appropriate to consider the sentencing reasons of co-offenders and the extent to which such considerations were permissible. Additionally, the court needed to assess whether the sentencing judge had correctly applied the principles relating to the plea discount and the non-parole period.

The High Court found that the sentencing judge had properly considered the relevant factors in imposing the sentence. While the court may consider the sentencing reasons for co-offenders, it was not appropriate to determine whether the sentence for a co-offender was manifestly excessive or inadequate. Regarding the plea discount, the court held that remorse and contrition were encompassed within the discount, and the sentencing judge had correctly applied the principles under section 21A of the Crimes (Sentencing Procedure) Act 1999. The court also found that the sentencing judge had appropriately considered the aggravating factors, and the absence of other factors did not diminish the significance of those present. Finally, the court noted that sentencing statistics and comparisons were of limited use, particularly when based on limited data.

The High Court dismissed the appeal, affirming the sentence imposed by the trial judge. The court held that the sentencing judge had properly exercised his discretion in imposing the sentence and had not erred in law or failed to consider relevant factors. The defendant's appeal was thus unsuccessful, and the original sentence stood.

Orders