R v Vergara

[2002] NSWCCA 314

CITATION:	R v Vergara [2002] NSWCCA 314
FILE NUMBER(S):	CCA 60180/02
HEARING DATE(S):	26 July 2002
JUDGMENT DATE:	26 July 2002
PARTIES :	Regina v Brandon Lee Vergara
JUDGMENT OF:	Heydon JA at 1; Levine J; Adams J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

COUNSEL :	Appellant: Mr P Strickland Respondent: Mr G J Bellew
SOLICITORS:	Appellant: David Giddy & Associates Respondent: Commonwealth Director of Public Prosecutions
DECISION:	See paragraph 6

60180/02

HEYDON JA
LEVINE J
ADAMS J

26 July 2002

REGINA v Brandon Lee VERGARA

Judgment

1 HEYDON JA: The applicant was tried before her Honour Morgan DCJ and a jury in the Downing Centre District Court between 28 April 1999 and 7 May 1999 for the offence of importing not less than a traffickable quantity of cocaine. The amount involved was found to be in the order of one kilogram or a little over one kilogram. There had been evidence before her Honour in this and the related trial of Jason Chanthoboury as to irregularities in the sampling process, which meant that the original calculation by the analyst could not be relied on. Schedule VI of the Customs Act provides that a trafficable quantity of cocaine is between two grams and two kilograms. The maximum penalty for such an offence is imprisonment for twenty-five years.

2 On 16 July 1999 the applicant was sentenced to imprisonment for eight years with a non-parole period of five years. Both the head sentence and the non-parole period were to date from 4 August 1998.

3 By notice dated 16 July 1999 the applicant appealed against conviction and sought leave to appeal against sentence. On 23 February 2001 the appeal was dismissed. The application for leave to appeal against sentence was not dealt with at that time.

4 By notice dated 17 September 2001 the applicant filed an application for leave to appeal against sentence and an application for an extension of time.

5 The Crown has indicated that it accepts that the present applicant and Chanthoboury were co-offenders and the issue of parity between their sentences was significant. This Court reduced Chanthoboury’s sentence from one of seven and a half years imprisonment with a non-parole period of four and a half years imprisonment to one of six years with a non-parole period of four years. The Crown accepts that the present applicant rendered significant assistance to the authorities and was entitled to an appropriate reduction in sentence. The Crown has indicated this morning that it accepts that the reduction should not accordingly be proportionate but should be such that the applicant’s sentence will be the same as that being served by Chanthoboury.

6 The orders of the Court are:

1. Time within which to apply for leave to appeal against sentence is extended to 17 September 2001.

2. The sentence imposed by Morgan DCJ is set aside.

3. That the applicant be sentenced to six years imprisonment with a non-parole period of four years to date from 4 August 1998 so that he will be eligible for release on 3 August 2002.

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