Holden v Regina (NSW)

[2002] NSWCCA 397

CITATION:	Holden v Regina (NSW) [2002] NSWCCA 397
FILE NUMBER(S):	CCA 60161/02
HEARING DATE(S):	27 September 2002
JUDGMENT DATE:	27 September 2002
PARTIES :	Craig Leslie Holden v Regina (NSW)
JUDGMENT OF:	Buddin J at 1,15; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	02/11/0039
LOWER COURT JUDICIAL OFFICER :	Downs DCJ

COUNSEL :	(A) P M Winch (C) P G Ingram
SOLICITORS:	(A) D J Humphreys (C) S E O'Connor
CATCHWORDS:	Sentencing - sentence manifestly excessive - no question of principle.
LEGISLATION CITED:	Nil
CASES CITED:	Nil
DECISION:	See paras 14 and 15

IN THE COURT OF
CRIMINAL APPEAL

BUDDIN J

SMART AJ

Friday, 27 September 2002

REGINA v CRAIG LESLIE HOLDEN

JUDGMENT

1. BUDDIN J: I will ask A/Justice Smart to give the first judgment.

2. SMART AJ: Craig Leslie Holden seeks leave to appeal against a sentence of imprisonment for 4 years with a non-parole period of 2 years for the offence of supplying a prohibited drug (methylamphetamine) taking into account two counts of possess prohibited drug (cannabis and cannabis resin) and one count of goods in custody.

3. About 4.30 pm on 31 July 2001 the police entered the offender's room, a small bed-sitter with a kitchenette attached, being 1/56 Darley Road, Manly. A search warrant was executed. All except one of the drugs which were found were clearly seen sitting next to the offender on top of the mattress. These drugs were found:

(i) 13 clear gel capsules containing an amphetamine known as ice (2.3 grams – value about $650) and 2 separate bags of amphetamine weighing about 40.6 grams and having a total value of about $4000.

(ii) two plastic resealable bags containing cannabis weighing about 23.5 grams and having a value of about $588 - (1st matter, Form 1)

(iii) a small block of cannabis resin weighing about 6.8 grams and having a value of about $340 – (2nd matter – Form 1)

(iv) $345.10 in assorted denominations of cash – (3rd matter, Form 1)

4. The offender was born on 4 January 1978 and has convictions between 1996 and June 2001 for dishonesty, possession of drugs, assault officer in execution of his duty and contravene apprehended domestic violence order. He was fined for these offences and in one instance he was placed on a bond. There was nothing of consequence.

5. The judge had regard to the Pre-Sentence Report and the evidence of the applicant's mother. The applicant's parents have been separated since the time of his birth. He has been reared by his mother who also brought up his elder sister. He had had little contact with his father for some years. His mother had a stroke about April 2000 and that has had major and lasting adverse effects. She is in receipt of a disability pension and the applicant is in receipt of a carer's pension. The applicant's elder sister has a psychiatric condition.

6. The applicant told the Probation and Parole officer that he sold drugs to make money. He could not work because of his mother. He declined to discuss various options for work. There was no indication of remorse. He has used marihuana since he was 14 years of age. Of recent times prior to sentence he used it occasionally, but when he does, he tends to binge.

7. The Probation and Parole officer stated:

"Mr Holden presented as a misunderstood and unappreciated young person, with no concerns about his behaviour in this offence. His laissez faire attitude towards the law and to keeping appointments with this Service, and his tendency to blame others, gave no indication that he was prepared to change his behaviour."

8. The applicant's mother spoke of the emotional and financial support which he had given her. Some of her evidence was affected by a lack of coherency.

9. The judge said:

"The drugs found in his possession together with the bags [the resealable bags] clearly demonstrate that the amount of drugs together with the bags found in his possession that he was a supplier to a significant degree … his financial circumstances are such that there were not any signs of affluence. Indeed, the signs were quite to the contrary so it cannot be suggested that he was making or seeking to make a lot of money from the supply of drugs."

10. The judge found that special circumstances existed. These appear to have included the undoubted need for his rehabilitation for his drug abuse and the consequent need for supervision, advice and treatment. I agree that there were special circumstances. I would add the young age of the applicant and that he had not previously been to gaol.

11. The applicant complained that the head sentence imposed was above the range for similar offenders and relied upon the statistics of the Judicial Commission, that the judge failed to give sufficient credit for the early plea of guilty and its utilitarian value and that the sentence was, in any event manifestly excessive.

12. The judge acknowledged that the applicant had pleaded guilty at the first opportunity but the judge did not indicate whether he had given the applicant a discount and, if so, what discount. The sentence does not reflect a discount for a plea of guilty. The judge's assertion that the applicant was a supplier to a significant degree is incorrect. Despite the contentions of the Crown to the contrary the sentence imposed was manifestly excessive. The applicant's operation was a small one, he was a small time supplier and the quantities involved were small. Further, the applicant had never been in custody before and his prior record did not disentitle him to leniency. He was a young man with an unfortunate background. It is true that his attitude was less than satisfactory and that did not help him. However, focussing on his criminality, the sentence he received was manifestly excessive. This Court must re-sentence.

13. I take into account the contents of the applicant's affidavit of 27 August 2002, that of 24 September 2002 and that of N M Steel of 24 September 2002. The applicant was placed in protection at John Moroney Correctional Centre after a fellow inmate threatened to stab him if he did not cause drugs to be brought into the gaol. On 7 September 2002 he was transferred to Kirkconnel Correctional Centre. His family has been unable to visit him there but he is now working as a sweeper and likes doing so. Telephone calls are limited because they go by STD and are expensive. I take into account the courses which he has completed.

14. I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed; sentence quashed

3. In lieu thereof, the applicant is sentenced to imprisonment for 3 years commencing on 1 March 2002 with a non-parole period of 18 months commencing that day and ending on 31 August 2003 on which day the applicant is to be released on supervised parole.

15. BUDDIN J: I agree with Smart AJ. The orders will be as proposed by Smart AJ.

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