Jesse Daniel Heilpern v The Queen - [2006] NSWCCA 311

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Jesse Daniel Heilpern v R [2006] NSWCCA 311

FILE NUMBER(S):
2006/1916

HEARING DATE(S): 22 September 2006

DECISION DATE: 22/09/2006

PARTIES:
Jesse Daniel Heilpern (Applicant)
Crown (Respondent)

JUDGMENT OF: McClellan CJ at CL Buddin J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/51/0140

LOWER COURT JUDICIAL OFFICER: Black DCJ

COUNSEL:
P Hamill SC (Applicant)
N Noman (Crown - Respondent)

SOLICITORS:
Bolt Findlay Solicitors (Applicant)
S Kavanagh - Solicitor for Public Prosecutions

CATCHWORDS:
Supply of prohibited drugs (x2) - offender drug dependent - significance of time spent in Odyssey House - significance of Form 1 matters - whether pleas of guilty taken into account - whether necessary to have regard to finding of "special circumstances" in respect of both sentences - whether offender in fact on a bond

LEGISLATION CITED:
Crimes (Local Courts Appeal and Review) Act, 2001
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal is granted. The appeals against sentence are allowed. The sentences imposed in the District Court are quashed and in lieu thereof the following sentences are imposed. In respect of count 1 (and taking into account the matters on a Form 1) the applicant is sentenced to a non-parole period to commence on 9 June 2005 and to expire on 22 September 2006 with a total sentence of 2 years which will expire on 8 June 2007. In respect of count 2 the applicant is sentenced to a non-parole period to commence on 9 June 2006 and to expire on 22 September 2006 with a total sentence of two years which will expire on 8 June 2008. The effect of these orders is that the applicant is to be released on parole today.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1916
McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J
FRIDAY 22 SEPTEMBER 2006

JESSE DANIEL HEILPERN v REGINA

Judgment

Introduction

BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 9 June 2006 following his pleas of guilty to two offences of supplying prohibited drugs.
In respect of the first offence, which alleged that he supplied 33.9 grams of ecstasy between 10 August and 1 September 2004, the applicant was sentenced to a non-parole period of 18 months with a total sentence of 2 years imprisonment. That sentence was ordered to commence on 9 June 2005 and the non-parole period will thus expire on 8 December 2006. In passing sentence for this offence, two further offences on a Form 1 document, were taken into account by the sentencing judge. Those offences related to the possession and cultivation of cannabis. The maximum penalties for those offences were 2 years and 10 years imprisonment respectively.
In respect of the second offence, which alleged that he supplied 67 grams of ecstasy on 10 November 2004, the applicant was sentenced to a non-parole period of 6 months with a total term of 2 years imprisonment. That sentence was ordered to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jesse Daniel Heilpern v The Queen

Details

AGLC: Jesse Daniel Heilpern v The Queen [2006] NSWCCA 311
Case: [2006] NSWCCA 311
Decision Date: 22 September 2006

CaseChat Overview and Summary

Jesse Daniel Heilpern brought an appeal against his sentence before the New South Wales Court of Criminal Appeal. The appellant was convicted of two counts of supplying ecstasy and was sentenced to a total of three years imprisonment, with an effective non-parole period of 18 months. The appellant argued that the sentence was excessive and that the primary judge had failed to take into account the fact that he had entered a plea of guilty and had spent a significant period of time in custody prior to sentencing. The appellant also argued that the primary judge had failed to take into account the fact that he was in fact on a bond. The central legal issue before the court was whether the sentence imposed was excessive and whether the primary judge had failed to properly consider certain mitigating factors. In particular, the court had to determine whether the appellant's guilty plea and the time he had already spent in custody should have been taken into account in determining the appropriate sentence. The court also had to consider whether the primary judge had erred in failing to take into account the fact that the appellant was on a bond.
The court found that the primary judge had erred in not taking into account the appellant's guilty plea and the time he had already spent in custody. The court held that these factors should have been taken into account in determining the appropriate sentence. However, the court found that the sentence imposed was not excessive having regard to all the circumstances of the case. The court held that the primary judge had properly considered the appellant's drug dependency and the fact that he had made progress in a rehabilitation program. The court also held that the primary judge had properly considered the seriousness of the offences and the need to deter the appellant and others from engaging in similar conduct. The court dismissed the appeal against sentence. The appellant's sentence of three years imprisonment, with an effective non-parole period of 18 months, was upheld.

Orders

Orders of the court

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Background

Background to the litigation

In respect of the second offence, which alleged that he supplied 67 grams of ecstasy on 10 November 2004, the applicant was sentenced to a non-parole period of 6 months with a total term of 2 years imprisonment. That sentence was ordered to commence on 9 June 2006 and the non-parole period for this offence will thus also expire on 8 December 2006. Accordingly the effective non-parole period is 18 months whilst the effective total sentence is 3 years. The maximum penalty for each of the offences of supplying ecstasy is 15 years imprisonment and/or a fine of $220,000. The trafficable quantity prescribed by the legislature for ecstasy is 0.75 grams and the commercial quantity is 125 grams.Factual background In July 2004 the Richmond Local Area Command Drug Unit commenced an investigation into the distribution of ecstasy and cannabis in the Northern Rivers region of New South Wales. As a result, the applicant and his younger brother were identified as being the source of the supply of ecstasy to a man named Peter Massie. During the course of the investigation the telephone services of each of those three persons were intercepted.The first offence On 31 August an undercover police operative (UCO) contacted Massie and arranged to purchase 100 tablets of ecstasy from him. The following day the UCO met Massie at a local hotel. The applicant was observed attending the vicinity of the hotel in his vehicle. Massie got into the applicant’s vehicle and they both then left the scene. A short time later, Massie reappeared and provided the UCO with 100 tablets of ecstasy for which he received $2700. This transaction was recorded by way of a telephone intercept and a listening device.The second offence On 2 November 2004 the UCO contacted Massie and requested that he provide him with 1000 tablets of ecstasy. Massie then made contact with the applicant’s brother, who in turn, contacted the applicant. On 10 November the UCO again contacted Massie. Massie met the UCO and told him that he could not arrange 1,000 tablets but that he could obtain “somewhere in excess of 500”. Later that day Massie told the UCO that his friends could only “source” 200 tablets. The UCO agreed to accept that quantity of tablets. Massie then spoke to the applicant’s brother and arranged a meeting with him. The meeting was observed by police who then arrested Massie, as well as the applicant and his brother. The applicant’s brother was found to be in possession of the 200 tablets which were apparently going to be supplied to the UCO.Form 1 offences Later the same day a search warrant was executed at the premises occupied by the applicant. Police located 19 cannabis plants which were being grown hydroponically in a shed at the rear of the property. They also located 456 grams of cannabis inside the house.The subjective case The applicant, who was aged 20 when he committed the offences, spent a total of 103 days in custody following his arrest. He was then released on bail on condition that he enter the drug rehabilitation program conducted by Odyssey House. When he appeared for sentence on 13 December 2005, he had spent a period in excess of 9 months in that program. Although the applicant had not at that stage completed the program, evidence was placed before the Court which outlined the progress which he had made up until that point in time. It was against that background that the sentencing judge adjourned the proceedings to enable the applicant to complete the program.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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