R v John Edward Viana [2001] NSWCCA 171

New South Wales Court of Criminal Appeal

CITATION : R v John Edward Viana [2001] NSWCCA 171 FILE NUMBER(S) : CCA 60402/99 HEARING DATE(S) : 06/04/01 JUDGMENT DATE : 6 April 2001

Regina PARTIES : v John Edward Viana JUDGMENT OF : Meagher JA at 1; Wood CJ at CL at 6; Studdert J at 7

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0890 LOWER COURT JUDICIAL Viney DCJ OFFICER :

COUNSEL : Appellant: Paul Byrne SC Respondent: Robert Sutherland SOLICITORS : Appellant: Legal Aid New South Wales Respondent: Commonwealth Director of Public Prosecutions CATCHWORDS : Criminal law - application for leave to appeal against sentence - whether non-parole period represents too high a proportion of head sentence - appeal dismissed. CASES CITED: Bernier v R (1998) 102 ACrimR 44 DECISION : Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL

CCA 60402/99

MEAGHER JA WOOD CJ at CL STUDDERT J

Friday, 6 April 2001 R v JOHN VIANA JUDGMENT

1 MEAGHER JA: This is an application for leave to appeal by Mr John Edward Viana against a sentence imposed by his Honour Judge Viney on 16 March 1999. In effect was comprised a head sentence of fourteen years and a non-parole period of ten years. It is not submitted that the head sentence is too long, but is said that the non-parole period represents too high a proportion of the head sentence. 2 Attention is drawn to the fact that the applicant's co-offender, Mr Stead, was given a sentence of ten years with a non-parole period of five years. In the case of the co-offender, Mr Bonett, the sentence was eight years with a non-parole period of three and a half years. The percentages of the non-parole period to the head sentence, therefore, is as follows: Mr Viana, 71.31 percent; Mr Stead, 50 percent; Mr Bonett, 43.75 percent. 3 The principles of law applicable in this area have been laid down by this court in Bernier v R (1998) 102 ACrimR 44. There is in fact no statute which requires the non-parole period to bear any particular proportion in relation to the head sentence, nor is there any mandatory precedent in this Court which requires a fixed sentence. The most that can be said is that this Court has usually in cases of this sort, thought the proportion ought to be somewhere between 60 and 66 percent. That is not to say that higher percentages cannot stand. Indeed, if one looks at a survey of similar cases, there are many cases in which this court has approved of high percentages as high as 75 percent at least. 4 To compare Mr Viana's position to the position of Mr Stead and Mr Bonett, is also hardly fair. They are very different cases. To compare Mr Viana's position to Mr Bonett, one finds these factors at least: Mr Viana was a much more serious offender in that he initiated a whole series of importations earlier than the one with which he was charged. Mr Bonett was not in that position. Mr Viana did not enter an early plea of guilty whereas Mr Bonett did. He did not give any particular cooperation to the authorities, where Mr Bonett did. What is more significant is that Mr Viana had three other charges against him, apart from the conspiracy to import commercial quantities of cocaine. In addition, he was charged with possession of not less than the commercial quantity of cocaine and with possession of prohibited weapons and possession for supply of not less than the indictable quantity of cannabis. These matters are reflected in the length of the head sentence. 5 In the circumstances, I cannot see why the seriousness of the crimes so reflected should not also be reflected in the proportion of the non-parole period to the head sentence. For these reasons I am of the view the application should be dismissed. 6 WOOD CJ at CL: I agree. 7 STUDDERT J: I also agree. 8 MEAGHER JA: The order of the Court, therefore is that the appeal is dismissed. ******