R v Thomson; R v Houlton

[2000] NSWCCA 383

CITATION:	Regina v Busuttil [2000] NSWCCA 383
FILE NUMBER(S):	CCA 60526/99
HEARING DATE(S):	2/8/00
JUDGMENT DATE:	2 August 2000
PARTIES :	The Crown Jason Edward Busuttil (Appl)
JUDGMENT OF:	Newman J at 1; Sperling J at 5

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0157 98/21/0267
LOWER COURT JUDICIAL OFFICER :	Howie DCJ

COUNSEL :	R D Ellis (Crown) Appl in person
SOLICITORS:	S E O'Connor (Crown) Appl in person
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1986
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60526/99


NEWMAN J
SPERLING J

WEDNEDAY, 2 AUGUST 2000

REGINA v Jason Edward BUSUTTIL

JUDGMENT

1    NEWMAN J: The applicant Jason Busuttil pleaded guilty in the District Court before Howie DCJ to a count of supply prohibited drug contrary to the provisions of s 25 (1) of the Drug Misuse And Trafficking Act 1986. The maximum penalty available under that section is imprisonment for fifteen years and/or a fine of 2000 penalty points. In addition to pleading guilty to the sole count in the indictment the applicant asked his Honour to take into account no less than eight matters on a form one. They included three matters involving drugs, two of having goods in custody, one of being in possession of a prohibited article and one of driving a conveyance without the consent of the owner. His Honour did take into account those matters.

2    In the event his Honour sentenced the applicant to a head sentence of thirty-five months consisting of a minimum term of seventeen months which expires on 8 February 2001 and an additional term of eighteen months. His Honour in so finding found special circumstances in order to construct the sentence as he did. The matter to which the applicant pleaded guilty involved a quantity of methylamphetamine namely 31.3 grams and a total of 337.6 grams of cannabis leaf. The form one involved some other drugs including methylamphetamine. I need not go into those matters in detail. His Honour in sentencing the applicant gave very cogent and detailed reasons for sentence.

3    Before the court today the applicant appearing in person, relied upon two matters. First, that his commission of the offence was induced by his desire to support his own drug habit at the time and not for the purposes of being engaged actively in the drug trade for profit. In R v Henry a five member bench of this Court held that the fact that a person's engagement in the drug trade is caused or induced by a desire to support that person's own drug habit is not a matter which should be taken into account in mitigation. Accordingly that part of the applicant's submission must of necessity fail.

4    The second matter is that the applicant raises the fact that since he has been incarcerated he has done very well, in fact at the moment he is under work release. The court is delighted to note the applicant's progress and wishes him very well in the future, unfortunately this Court is a court of error and the fact that the applicant has progressed very well while in custody is not a matter indicative of any error on the part of the learned sentencing judge. The sentence which his Honour passed was well within his Honour's sentencing discretion having regard to the nature of the offence. For those reasons I am of the view that any appeal must fail. Because it is important to the applicant I would grant him leave but would dismiss the appeal.

5    SPERLING J: I agree.

6    NEWMAN J: The orders of the court will be as indicated. Well, Mr Busuttil, I think you understand why we had to dismiss your appeal but again the court wishes you well and hopes that you continue the way you are going.

7    APPLICANT: Thank you, your Honour.

8    NEWMAN J: Thank you very much, you may now leave.

9    APPLICANT: Thank you.

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