Regina v Capper [2000] NSWCCA 63

New South Wales Court of Criminal Appeal

CITATION : Regina v Capper [2000] NSWCCA 63 FILE NUMBER(S) : CCA 60452/99 HEARING DATE(S) : 10/03/00 JUDGMENT DATE : 14 March 2000

Regina PARTIES : v Wayne Bradley Capper JUDGMENT OF : Fitzgerald JA; Abadee J; Barr J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/3002 LOWER COURT JUDICIAL Latham DCJ OFFICER :

COUNSEL : Mr T.J. O'Donnell (Applicant) Mr M Ierace SC (Respondent) Mr David Cohen (Applicant) SOLICITORS : Suite 15, 301 Castlereagh Street, Sydney Commonwealth Director of Public Prosecution (Respondent) CATCHWORDS : Criminal Law - Appeal against sentence - effect of sentence on applicant's children - whether taken into account by sentencing judge - children now made wards of the State - whether Court should show mercy LEGISLATION CITED : Customs Act 1901 (Cth) Crimes Act 1914 (Cth) DECISION : Leave to appeal refused

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60452/99 DC 99/11/3002 FITZGERALD JA ABADEE J BARR J

Tuesday 14 March 2000

REGINA v Wayne Bradley CAPPER

JUDGMENT

1 THE COURT: The applicant has applied for leave to appeal against a sentence imposed on him in the District Court on 3 August 1999 following his guilty plea to one count that, on 19 November 1998, he was knowingly concerned in the importation of not less than a trafficable quantity of the drug colloquially known as ecstasy contrary s 233B (1)(d) of the Customs Act 1901 (Cth). 2 There is nothing remarkable about the circumstances of Mr Capper's offence or the sentence which was imposed. The amount of ecstasy imported was 478.9 grams gross, equivalent to 167.1 grams pure. Under sch 6 of the Customs Act, .5 gram pure ecstasy is a trafficable quantity, and 500 grams pure is a commercial quantity. The maximum custodial sentence for Mr Capper's offence was imprisonment for 25 years. He was sentenced to imprisonment for 5 years, with a non-parole period of 3 years. It was conceded both before this court and the sentencing judge that a custodial sentence was unavoidable. 3 In this Court, Mr Capper submitted that he should have received a more lenient sentence for only one reason; namely, that he was at all material times a sole parent of two children whose mother is hospitalised with mental illness, and that his sentence will probably have a serious detrimental effect upon those children, a matter which the sentencing judge was required to take into account under s 16A(2)(p) of the Crimes Act 1914 (Cth). Mr Capper has two children, a girl now aged 12 years and a boy now aged 10 years. 4 There was evidence before the sentencing judge that Mr Capper was a very good father to the children, which her Honour obviously accepted. There was also evidence before the sentencing judge in the form of a psychologists' report which pointed out that Mr Capper is the children's "major source of support and affection" and that their separation from him would have a "deleterious effect" on their welfare. 5 One submission made on Mr Capper's behalf was that the sentencing judge failed to take the probable effect of Mr Capper's sentence on his children into account. However, that is patently erroneous. The sentencing remarks include the following statement" "Mr Marshall, who appears for Mr Capper, has urged upon me the effect of the prisoner's incarceration upon his two young children as a factor which would result in the imposition of a sentence significantly less than what would be otherwise be called for in the circumstances of this case. I take into account that hardship under s 16A of the Crimes Act 1914, but such hardship as there may be could not in my view cause me to draw back from imposing a full time custodial sentence in respect of the present offence."