Vincent v Regina - [2006] NSWCCA 78

CITATION: Vincent v Regina [2006] NSWCCA 78

HEARING DATE(S): 31 January 2006

JUDGMENT DATE:
24 March 2006

JUDGMENT OF: Sully J at 1; Adams J at 15

DECISION: Leave to appeal against sentence granted; Sentences quashed and re-sentenced (see para 14 of judgment)

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

PARTIES: Shamus Vincent
Regina

FILE NUMBER(S): CCA 2005/1553

COUNSEL: P. Barrett - Crown
H. Dhanji - Appellant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0910

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

2005/1553
SULLY J
ADAMS J

24 March 2006

Shamus VINCENT v REGINA

Judgment

1 SULLY J: On 22 July 2004 the applicant, Mr. Vincent, pleaded guilty before a Local Court Magistrate to two charges. The first charge was that of having knowingly taken part, on 28 November 2002, in the supply of a prohibited drug, namely 3, 4 – methydioxymethylamphetamine, in an amount not less than the commercial quantity. Such an offence contravenes section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. The second charge was that of having supplied, on 30 December 2002, a commercial quantity of a prohibited drug, namely 3, 4 – methydioxymethylamphetamine in an amount not less than the commercial quantity. Such an offence contravenes section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years.

2 On 3 December 2004 the applicant was presented before his Honour Judge Nicholson SC at the Sydney District Court. Because of some administrative error respecting the formalities of the applicant’s committal by the Local Court to the District Court for sentence upon his pleas of guilty, the applicant was formally indicted upon the charges earlier noted; and he again pleaded guilty to each charge.

3 On 28 January 2005 the applicant stood for sentence. For the knowingly take part offence he was sentenced to a minimum term of 15 months commencing 28 January 2005 and expiring on 27 April 2006; with a balance of term of 5 months commencing on 28 April 2006 and expiring on 27 September 2006. For the supply offence he was sentenced to a non-parole period of 2 years 6 months commencing on 28 April 2006 and expiring on 27 October 2008, with a balance of term of 1 year 3 months commencing on 28 October 2008 and expiring on 27 January 2010.

4 The applicant now seeks leave to appeal against those sentences. One ground was notified and argued in support of the application, namely:

“The learned sentencing judge in sentencing the applicant on count one, erred in failing to give effect to his finding that the applicant’s participation was substantially less than that which his Honour had found on his earlier mistaken view of the facts.”

5 The learned sentencing Judge…

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 Vincent v Regina

Details

AGLC: Vincent v Regina [2006] NSWCCA 78
Case: [2006] NSWCCA 78
Decision Date: 24 March 2006

CaseChat Overview and Summary

Shamus Vincent appealed against the sentences imposed upon him by the District Court for two drug-related offences. The appellant pleaded guilty to both charges, which involved the supply of a commercial quantity of a prohibited drug, ecstasy. The primary legal issue before the Court of Criminal Appeal was whether the District Court had erred in sentencing the appellant on the first charge by not taking into account the appellant's lesser role in the offence. The appellant argued that his involvement in the offence was substantially less than initially thought by the sentencing judge. The Crown did not dispute the appellant's argument but submitted that a lesser sentence was not warranted.

The Court of Criminal Appeal held that the District Court had indeed erred in its assessment of the appellant's role in the offence. It was found that the appellant's involvement was less significant than originally thought, as he was not present during the negotiation and transfer of drugs. The Court concluded that a lesser sentence was warranted in law to correct this injustice. The Court of Criminal Appeal granted leave to appeal against the sentence, quashed the original sentences, and re-sentenced the appellant to 16 months imprisonment for the first charge with a non-parole period of 12 months, and 3 years and 9 months imprisonment for the second charge with a non-parole period of 2 years and 6 months.

Orders