Regina v Davis [2000] NSWCCA 244

Regina v Davis [2000] NSWCCA 244

The sentencing miscarried because the judge sentenced the appellant for supply offences without making findings as to the amount of heroin supplied or possessed for supply, despite acceptance that some of the heroin was for the appellant's own use. Section 29 did not deem all heroin possessed to be for supply once possession partly otherwise than for supply was proved. Quantity was necessary to assess objective criminality, the applicable sentencing range and the possible relevance of summary disposal below the 5 gm indictable quantity. On agreed findings as to the quantities, the Court quashed the sentences and re-sentenced the appellant, taking into account the small but not...

Jurisdiction
Australia
Judgment Date
10 July 2000
Procedural Posture
Criminal Appeal Against Sentence for Supply of a Prohibited Drug / Application for Leave to Appeal Against Sentences in the NSW Court of Criminal Appeal; Sentences Quashed and Appellant Re Sentenced
Outcome
Sentences imposed below quashed; appellant re-sentenced by the Court of Criminal Appeal.
Legal Topics
['supply of Prohibited Drug' 'possession Deemed for Supply' 'appeal Against Sentence' 'manifest Excess' 'form 1 Offences' 'non Parole Period' 'rehabilitation' 'drug Addiction and Sentencing']
['criminal Law' 'sentencing' 'drug Offences'] ['supply of Prohibited Drug' 'possession Deemed for Supply' 'appeal Against Sentence' 'manifest Excess' 'form 1 Offences' 'non Parole Period' 'rehabilitation' 'drug Addiction and Sentencing']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence for Supply of a Prohibited Drug / Application for Leave to Appeal Against Sentences in the NSW Court of Criminal Appeal; Sentences Quashed and Appellant Re Sentenced

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to make findings as to the amounts of heroin supplied where some heroin possessed by the appellant was accepted to be for his own use.' "Whether s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) deemed all heroin found in the appellant's possession to be for supply despite proof that possession was partly otherwise than for supply." 'Whether the Court of Criminal Appeal should remit the matter for re-sentencing or re-sentence on agreed findings as to the quantities of heroin involved.' "How the appellant's drug addiction, guilty pleas, admissions, rehabilitation efforts, prior record, recognisance and bail status should affect re-sentencing."]

Ratio Decidendi

The sentencing miscarried because the judge sentenced the appellant for supply offences without making findings as to the amount of heroin supplied or possessed for supply, despite acceptance that some of the heroin was for the appellant's own use. Section 29 did not deem all heroin possessed to be for supply once possession partly otherwise than for supply was proved. Quantity was necessary to assess objective criminality, the applicable sentencing range and the possible relevance of summary disposal below the 5 gm indictable quantity. On agreed findings as to the quantities, the Court quashed the sentences and re-sentenced the appellant, taking into account the small but not...

Court Disposition

Sentences imposed below quashed; appellant re-sentenced by the Court of Criminal Appeal.

Orders

  • ["In respect of the first count, being a sale of 1.6 gm of heroin, the appellant is sentenced to a term of 2 years' imprisonment." "In respect of the second count, which involved possession for the purpose of supply of 3 gm of heroin but which was committed when he was released on bail, taking into account the...