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R v Thomson; R v Houlton

R v Thomson; R v Houlton

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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…

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.

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Details

Case: [2000] NSWCCA 383
Decision Date: 2 August 2000

CaseChat Overview and Summary

In Regina v Busuttil, the applicant, Jason Edward Busuttil, was convicted by Howie DCJ in the District Court of supplying a prohibited drug in contravention of section 25(1) of the Drug Misuse and Trafficking Act 1986. Busuttil was sentenced to a head sentence of thirty-five months with a minimum term of seventeen months, expiring on 8 February 2001, and an additional term of eighteen months. The applicant appealed against his sentence on two grounds. Firstly, Busuttil contended that his engagement in the drug trade was induced by his desire to support his own drug habit, and not for profit. Secondly, he argued that his positive progress while in custody should be taken into account as indicative of an error in the original sentence.

The Court of Criminal Appeal, comprising Newman J and Sperling J, dismissed the appeal. The court held that the applicant's desire to support his own drug habit was not a matter to be taken into account in mitigation, following the decision in R v Henry. Furthermore, the court noted that while the applicant had made commendable progress while in custody, this did not constitute an error on the part of the sentencing judge. The sentence imposed by Howie DCJ was well within the sentencing discretion, taking into account the nature of the offence. Consequently, the appeal was dismissed.

The court granted Busuttil leave to appeal but dismissed the appeal due to the reasons outlined above. The court expressed its hope that Busuttil would continue on his positive path.

Orders