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Trejos v R

Trejos v R

Case [2017] NSWCCA 122 2 June 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Trejos v R [2017] NSWCCA 122
Hearing dates: 28 April 2017
Date of orders: 02 June 2017
Decision date: 02 June 2017
Before: Hoeben CJ at CL at [1]
Fullerton J at [77]
Hamill J at [81]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – three offences of commercial supply of cocaine and one offence of dealing with the proceeds of crime – whether sentencing judge wrongly took into account a matter of aggravation – whether sentencing judge incorrectly stated the maximum penalty for the supply offences – grounds of appeal made out – need to resentence – on resentence no lesser sentence warranted in law – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)(2)(i), s 21A(2)(o)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW) – s 25(2)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Pt 9
Cases Cited: Regina v CN [2001] NSWCCA 100
Dang v R [2014] NSWCCA 47
JT v R [2012] NSWCCA 133
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lehn v R [2016] NSWCCA 255
Mansour v The Queen [2011] NSWCCA 28; 209 A Crim R 275
Mill v The Queen [1988] HCA 70; 166 CLR 59
Nguyen v R (2016) 256 CLR 656; [2016] HCA 17
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Potts v R [2017] NSWCCA 10
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Tuala [2015] NSWCCA 8
Skocic v R [2014] NSWCCA 225
Category: Principal judgment
Parties: Francisco Javier Trejos – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr R Wilson – Applicant
Mr S Hughes – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/056774
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29/04/2016

Before:

Norrish QC DCJ

File Number(s):

2015/056774

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

On 29 April 2016 the applicant was sentenced by Norrish QC DCJ for three offences of supplying a commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and one offence of knowingly deal with the proceeds of crime ($104,500), contrary to s 193B(2) of the Crimes Act 1900 (NSW). In relation to the drug supply offences, the maximum penalty is imprisonment for 20 years with a standard non-parole period of 10 years. In relation to the knowingly deal with proceeds of crime offence, the maximum penalty is imprisonment for 15 years.

The sentences imposed by his Honour were:

Sequence 3 – commercial supply on 3 February 2015 – imprisonment for 7 years, commencing 23 February 2015 and expiring 22 February…

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 Trejos v R

Details

AGLC: Trejos v The Queen [2017] NSWCCA 122
Case: [2017] NSWCCA 122
Decision Date: 02 June 2017

CaseChat Overview and Summary

The appellant, Trejos, was convicted of three counts of commercial supply of cocaine and one count of dealing with the proceeds of crime. He appealed against his sentence, arguing that the sentencing judge had improperly considered a matter of aggravation and misstated the maximum penalty for the supply offences. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the sentencing judge had erred in considering a matter of aggravation and whether the judge had incorrectly stated the maximum penalty for the supply offences. The court examined the sentencing remarks to determine if they were influenced by any improper considerations and assessed whether the maximum penalty for the supply offences had been correctly stated.

The court found that the sentencing judge had indeed erred in considering a matter of aggravation but concluded that this error did not impact the overall sentence. The court also found that the maximum penalty for the supply offences was misstated. However, upon re-sentencing without the improper consideration, the court determined that no lesser sentence was warranted in law. Consequently, the appeal was dismissed, and the original sentence was affirmed.

Orders