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Webber v The Queen

Webber v The Queen

Case [2014] NSWCCA 111 24 June 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Webber v R [2014] NSWCCA 111
Hearing dates: 26/03/2014
Decision date: 24 June 2014
Before: Hoeben CJ at CL at [1]
Fullerton J at [2]
Adamson J at [50]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - importing a commercial quantity of cocaine - s 166 certificate offences - guilty plea -whether sentencing judge failed to give appropriate weight to applicant's subjective case - whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Barbaro v R [2014] HCA 2
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Dyer v R [2011] NSWCCA 185
Edwards v R [2009] NSWCCA 199
Elturk v R [2014] NSWCCA 61
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
Ng v R (Cth) [2010] NSWCCA 232
R v Todoroski (District Court (NSW), Sorby DCJ, 14 August 2009, unrep)
R v Tran; R v Tran and R v Nguyen [2013] NSWCCA 136
Radi v R [2013] NSWCCA 278
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Damien John Webber (Applicant)
The Crown (Respondent)
Representation: Counsel:
D O'Neil (Applicant)
P Neil SC (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2010/157614; 2010/260896
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-04-13 00:00:00

Before:

Black DCJ

File Number(s):

2010/157614; 2010/260896

Judgment

HOEBEN CJ at CL: I agree with Fullerton J.

FULLERTON J: The applicant seeks leave to appeal against a sentence imposed by Black DCJ on 13 April 2012 after adhering to a plea of guilty entered in the Local Court on 5 July 2011 to importing a commercial quantity of cocaine, contrary to s 307.1 of the Criminal Code Act 1995 (Cth). That offence attracts a maximum penalty of life imprisonment.

The gross weight of the cocaine was 3280.7 grams with a calculated pure weight of 2219.3 grams. Schedule 4 of the Criminal Code Regulations 2002 (Cth) defines a commercial quantity of cocaine as 2 kilograms.

On the same date the applicant adhered to pleas of guilty to supplying one gram of cannabis contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW) and possessing 73.3 grams of cannabis and 1.6 grams of cocaine contrary to s 10 of that Act. These offences were the subject of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). The sentences imposed for those offences are not the subject of this application.

On 3 January 2010 federal agencies intercepted a consignment from Costa Rica declared as "New Engine 2009 Golf buggy 125cc" which, upon deconstruction, contained a motorcycle engine in which the cocaine was secreted. An inert substance was substituted for the…

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 Webber v The Queen

Details

AGLC: Webber v The Queen [2014] NSWCCA 111
Case: [2014] NSWCCA 111
Decision Date: 24 June 2014

CaseChat Overview and Summary

In Webber v The Queen, the appellant was convicted of importing a commercial quantity of cocaine and faced sentence appeal. The appellant had pleaded guilty to two counts of drug importation under the relevant sections of the Customs Act 1901. The court had to determine whether the sentencing judge failed to give appropriate weight to the appellant's subjective case and whether the sentence was manifestly excessive. The court examined the sentencing principles and the appellant's mitigating factors, including his plea of guilty and cooperation with authorities. The court found that the sentence imposed by the primary judge was within the range of appropriate sentences for the offence committed.

The legal issues before the court were whether the sentencing judge erred in failing to give appropriate weight to the appellant's subjective case and whether the sentence was manifestly excessive. The court examined the sentencing principles, the relevant legislation, and the case law on sentencing for drug importation offences. The court also considered the mitigating factors presented by the appellant, including his plea of guilty and cooperation with authorities. The court concluded that the sentencing judge had given appropriate weight to the appellant's subjective case and that the sentence was not manifestly excessive.

The court found that the sentencing judge had appropriately considered the appellant's subjective case and had given proper weight to the mitigating factors. The court held that the sentence imposed by the primary judge was within the range of appropriate sentences for the offence committed. The court noted that the appellant had pleaded guilty and cooperated with authorities, which were significant mitigating factors. The court also held that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offence. The court dismissed the appeal against sentence.

The court dismissed the appeal against sentence. The appellant's sentence of imprisonment for a term of eight years, with a non-parole period of six years, was upheld. The court found that the sentencing judge had appropriately considered the appellant's subjective case and had given proper weight to the mitigating factors. The court held that the sentence imposed by the primary judge was within the range of appropriate sentences for the offence committed and was not manifestly excessive.

Orders