R v Thomas Dale Marchando [2003] NSWCCA 71

R v Thomas Dale Marchando [2003] NSWCCA 71

The sentencing judge did not miscarry in refusing the adjournment because the case had already been extensively adjourned, the applicant had ample opportunity to put material about his role before the court, and the proposed Boston evidence was only foreshadowed and did not require further delay. The Court refused to receive Mr Boston's affidavit because it was not shown to be significant enough to have had a real bearing on sentence, its absence did not cause a miscarriage of justice, it was unreliable prison-informer evidence, it emerged late without adequate explanation, and it did not undermine the strong consistent evidence of Popescu and Howard about the applicant's role. The...

Jurisdiction
Australia
Judgment Date
25 March 2003
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted. Appeal against sentence dismissed.
Legal Topics
['importation of Prohibited Drugs' 'trafficable Quantity of Methorphan and Methylamphetamine' 'fresh or New Evidence on Sentence Appeal' 'manifest Excess' 'parity' 'discount for Guilty Plea' 'assistance to Authorities']
['criminal Law' 'sentencing' 'customs and Drug Importation'] ['importation of Prohibited Drugs' 'trafficable Quantity of Methorphan and Methylamphetamine' 'fresh or New Evidence on Sentence Appeal' 'manifest Excess' 'parity' 'discount for Guilty Plea' 'assistance to Authorities']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in refusing an adjournment to obtain additional material from Anthony Craig Boston concerning the applicant's role in the importation." "Whether the Court should receive Mr Boston's affidavit as new evidence on the sentence appeal." "Whether the sentence of 10 years' imprisonment with a non-parole period of 7 years was manifestly excessive." "Whether the sentencing judge erred in assessing the applicant's role as principal in the actual importation and in addressing parity with co-offenders." 'Whether the applicant was entitled to any greater discount for his plea of guilty or offer of assistance to authorities.']

Ratio Decidendi

The sentencing judge did not miscarry in refusing the adjournment because the case had already been extensively adjourned, the applicant had ample opportunity to put material about his role before the court, and the proposed Boston evidence was only foreshadowed and did not require further delay. The Court refused to receive Mr Boston's affidavit because it was not shown to be significant enough to have had a real bearing on sentence, its absence did not cause a miscarriage of justice, it was unreliable prison-informer evidence, it emerged late without adequate explanation, and it did not undermine the strong consistent evidence of Popescu and Howard about the applicant's role. The...

Court Disposition

Leave to appeal granted. Appeal against sentence dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal against sentence dismissed.']