Macfarlan JA at [1]; Adamson J at [8]; Campbell J at [106]
Decision:
(1) To the extent required, extend the time for the filing of the notice of application for leave to appeal against conviction.
(2) Grant leave to appeal against conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
(3) Dismiss the appeal against conviction.
(4) Grant leave to appeal against sentence.
(5) Allow the appeal against sentence, quash the sentence passed in the District Court, and re-sentence the applicant as follows:
(i) The offender is sentenced to imprisonment for a period of 8 years and 6 months commencing on 22 March 2013 and expiring on 21 September 2021;
(ii) Fix a non-parole period of 4 years and 6 months commencing on 22 March 2013 and expiring on 21 September 2017.
Catchwords:
CRIMINAL LAW – appeal against conviction following plea of guilty – importing commercial quantity of border controlled drug – fault element required under section 307.1 Criminal Code Act 1995 (Cth) – recklessness – where applicant admitted his awareness of a substantial risk that substance in suitcase was a border controlled drug – where there was no suggestion that applicant had not been properly advised as to entering plea of guilty or that plea of guilty was unsound – HELD – appeal dismissed –– no miscarriage of justice established to permit withdrawal of plea of guilty and order for retrial
CRIMINAL LAW – sentencing – sentencing judge found no genuine evidence of remorse in absence of applicant giving evidence on oath subject to cross-examination – applicant read an affidavit in which he expressed remorse – Crown did not cross-examine him – held by majority that sentencing judge erred in not finding remorse – difference between sworn affidavits and out of court statements recorded in a third party report referred to – applicant resentenced – sentence imposed by District Court quashed
[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.
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AGLC
Van Zwam v R [2017] NSWCCA 127
Case
[2017] NSWCCA 127
Decision Date
CaseChat Overview and Summary
In the matter of Van Zwam v R, the respondent was convicted of importing a commercial quantity of a border controlled drug, having pleaded guilty. The appeal against the conviction focused on the fault element required under section 307.1 of the Criminal Code Act 1995 (Cth), which mandates a reckless state of mind. The applicant admitted to being aware of a substantial risk that the substance in his suitcase was a border controlled drug. The central issue was whether the applicant's knowledge constituted recklessness or merely a lesser degree of fault, such as negligence.
The court examined the nature of the plea of guilty and noted there was no suggestion that the applicant had not been properly advised or that the plea was unsound. It was held that the applicant's admission of awareness of a substantial risk was sufficient to establish recklessness, affirming the conviction. The court concluded that no miscarriage of justice had been demonstrated, and therefore the plea of guilty could not be withdrawn, and a retrial could not be ordered.
The appeal also addressed the sentencing, where the sentencing judge had found no genuine evidence of remorse. The applicant had expressed remorse in an affidavit, which the Crown did not cross-examine. The majority found that the sentencing judge had erred in not considering this evidence of remorse, noting that sworn affidavits and out of court statements should be treated differently. The applicant was resentenced, and the sentence imposed by the District Court was quashed.