Regina v Blair [2005] NSWCCA 78

Reported Decision : 152 A Crim R 462

New South Wales Court of Criminal Appeal

CITATION: Regina v Blair [2005] NSWCCA 78

HEARING DATE(S): 1 March 2005

JUDGMENT DATE: 11 March 2005

JUDGMENT OF: Grove J at 1; James J at 62; Barr J at 63

DECISION: Appeal against conviction dismissed; Appeal against sentence allowed; Appellant resentenced

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - DEEMED SUPPLY OF PROHIBITED DRUG - HELD BY APPELLANT AFTER RECEIVING FROM ONE PERSON FOR PURPOSE OF PASSING TO ANOTHER - DIRECTION THAT APPELLANT MAY BE IN POSSESSION OTHERWISE THAN FOR PURPOSES OF SUPPLY NOT REQUIRED IN THOSE CIRCUMSTANCES - DIRECTIONS AS TO KNOWLEDGE THAT COMMERCIAL QUANTITY OF DRUGS IN POSSESSION SUFFICIENT - CONVICTION SUSTAINED - SENTENCE - STANDARD NON PAROLE PERIOD AND TOTAL TERM IN ACCORDANCE WITH STATUTORY FORMULA IMPOSED - ERROR IN CALCULATING POSITION OF SUBJECT QUANTITY IN RANGE AMOUNTING TO COMMERCIAL QUANTITY - PRIOR RECORD TREATED AS AGGRAVATING FACTOR OF OFFENCE - OMISSION TO ASSESS FACTORS RELEVANT TO SERIOUSNESS OF OFFENCE - INADEQUATE ASSESSMENT OF OTHER EVIDENCE CAPABLE OF AFFECTING DETERMINATION OF WHETHER STANDARD NON PAROLE PERIOD SHOULD BE IMPOSED - RESENTENCE BY THIS COURT APPROPRIATE

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: s 6(3) Criminal Appeal Act 1912 s 29(a) Drug Misuse & Trafficking Act 1985

Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd 1970 2 NSWR 156 R v Barnier [2001] NSWCCA 459 R v Carey 1990 50 A Crim R 163 R v CWW 1993 70 A Crim R 517 R v EAS, unrep, NSWCCA 26 July 1990 R v Fong, unrep, NSWCCA 20 November 1996 R v Frazer 2002 128 A Crim R 89 R v Johnson [2004] NSWCCA 76 CASES CITED: R v Kural 1987 162 CLR 505 R v Lau 1998 105 A Crim R 167 R v Liberti 1991 55 A Crim R 120 R v Shi [2004] NSWCCA 135 R v Tucker, unrep NSWCCA 8 November 1991 R v Way 2004 60 NSWLR 168 R v Wickham [2004] NSWCCA 193 Saad v The Queen 1981 70 ALR 667 Veen v The Queen (No 2) 1998 164 CLR 465