Regina v Donnelly, Regina v Donnelly

[2001] NSWCCA 203

CITATION:	Regina v Donnelly, Regina v Donnelly [2001] NSWCCA 203
FILE NUMBER(S):	CCA 60835/99; 60662/99
HEARING DATE(S):	09/05/01
JUDGMENT DATE:	9 May 2001
PARTIES :	Regina Shaun Vincent Patrick Donnelly
JUDGMENT OF:	Carruthers AJ at 1; Badgery-Parker AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/1143; 00/11/0412
LOWER COURT JUDICIAL OFFICER :	Neild J; Howie J

COUNSEL :	J Busuttil- Applicant L M B Lamprati- Crown
SOLICITORS:	N J O'Connor- Applicant S E O'Connor- Crown
CATCHWORDS:	Criminal law- sentencing- - possession of prohibited drug- - supply or personal use- - consideration of a discount after guilty plea- - elements of the offence.
LEGISLATION CITED:	Correctional Centres Act 1952 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Customs Act 1901
CASES CITED:	R v Thomson and Houlton (2000) 49 NSWLR 383
DECISION:	Appeal struck out

IN THE COURT OF
CRIMINAL APPEAL

60835/99 & 60662/99

CARRUTHERS AJ
BADGERY-PARKER AJ

WEDNESDAY 9 MAY 2001

REGINA v SHAUN VINCENT PATRICK DONNELLY

JUDGMENT

1    CARRUTHERS AJ: I will ask Badgery-Parker AJ to give the

first judgment.

2    BADGERY-PARKER AJ: In the District Court at Parramatta on 3 November 1999 the applicant, Shaun Vincent Patrick Donnelly, was indicted on a charge that on 24 March 1999 at Guildford he supplied the prohibited drug Methylamphetamine in an amount of 10.9 grams, which exceeds the trafficable quantity. He pleaded not guilty. On the following day the jury returned a guilty verdict and on 10 December 1999 his Honour Judge Nield imposed a total sentence of thirty-five months imprisonment, commencing 4 November 1999 and to expire on 3 October 2002, in respect of which his Honour fixed a minimum term of twenty-six months, which, having commenced on 4 November 1999, would expire on 3 January 2002, and an additional term thereafter of nine months.

3    The full term of thirty-five months took into account that the applicant had served approximately one month in custody in respect of the offence, having been arrested on 24 March 1999 and not released on bail until 22 April of that year.

4    On 31 March 2000 the applicant was an inmate of the Industrial Training Centre in the Long Bay Training complex serving the sentence imposed upon him at Parramatta. On that day he escaped. He was arrested later the same day and returned to custody.

5 At the Downing Centre District Court on 17 August 2000, before his Honour Judge Howie, he pleaded guilty to a charge of escape from lawful custody, contrary to s 30 of the Correctional Centres Act. In addition, he asked the sentencing judge to take into account three matters on a Form 1 under the provisions of the Criminal Procedure Act; namely, one offence of stealing a motor vehicle and two offences of larceny, all committed in the course of the escape. He was sentenced to imprisonment for a term of twenty-one months, to commence at the expiration of the minimum term of the previous sentence; that is, on 4 January 2002, and to expire on 3 October 2003. In respect of that sentence his Honour fixed a non-parole period of ten months which, having commenced on 4 January 2002, would expire on 3 November 2002.

6    Before this Court now are two applications for leave to appeal, one in respect of the sentence imposed by Judge Nield and one in respect of the sentence imposed by Judge Howie. However, in relation to the second matter, the applicant does not assert any error on the part of the sentencing judge. The application has been lodged only because, in the event that the appeal against the sentence imposed by Judge Nield should succeed, it would be necessary to adjust the commencement date of Judge Howie's sentence, and to make consequential adjustments to the other relevant dates.

7 At the trial there was no issue about the applicant's possession of a trafficable quantity of Methylamphetamine. His possession of such an amount of that prohibited drug attracted the provisions of s 29 of the Drug Misuse and Trafficking Act of 1985. The offence of supply is created by s 25 of that Act which provides that a person who supplies a prohibited drug is guilty of an offence. By s 3 the concept of "supply" is defined as including, inter alia, "having in possession for supply". S 29 provides as follows:

"A person who has in his or her possession an amount of a prohibited drug which is not less than the trafficable quantity of the prohibited drug shall, for the purposes of this division, be deemed to have the prohibited drug in his or her possession for supply, unless -

(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply ... "

8 A practice has grown up of referring to a charge of supply in which the Crown relies upon s 29 as authority for deemed supply as though the offence were in some way different from the offence of supply created by s 25. It is s 25 that creates the defence. S 29 is an evidentiary provision only, which will ease the Crown of the obligation of proving the intention of supply once possession of the relevant amount is established and places on the accused person the onus of proving, if he or she elects to admit to do so, that the possession of the drug was otherwise than for supply.

The following account of the facts is taken directly from Judge Nield's judgment.

"At about 4.30 pm on 24 March 1999 the prisoner ... was stopped by police for driving his motor vehicle at an excessive speed and in an erratic manner along Woodville Road between Yennora and Guildford. After being stopped by police the prisoner and his vehicle were searched. A plastic bag containing amphetamines ... and a set of electronic scales ... were found in a brief case ... which was on the vehicle's floor behind the driver's seat. Another plastic bag containing amphetamines ... and $1,930 in notes were found in the prisoner's wallet which he had on him. A pipe smoker's tool ... containing a spoon was found in the shorts which the prisoner was wearing.

The prisoner was arrested and taken to Merrylands Police Station. At the police station the prisoner was interviewed. The interview was recorded by video and audiotape ... during the interview the prisoner admitted his possession of the amphetamine, spoon, scales and money and, as to the amphetamine, said that he had obtained it for his personal use some months earlier ... the amphetamine was weighed and found to weigh 10.9 grams and analysed and found to be 34.5 per cent pure."

9    At the trial the applicant did not contest possession of the trafficable amount of the drug. Consequently the only issue was whether his possession of the drugs was otherwise than for supply; that is, for his personal use and consequently the trial was relatively short. The evidence and counsel's addresses occupied the whole of 3 November and the judge's summing up was delivered on the following day. The jury returned its verdict on that second day. The sentencing proceedings commenced the same day, and were subsequently adjourned to 10 December. Judge Nield refused bail and so the applicant has been in custody since 4 November 1999, for which reason the judge appropriately directed that the sentence which he imposed should commence on that date.

10    The sentencing judgment delivered by Judge Nield on 10 December appropriately and carefully reviews the salient features of the case. These included the prisoner's criminal record, which contained a number of offences relating to the possession or the supply of the prohibited drug. Most relevant among these was a sentence of imprisonment for three years, with a minimum and additional term each of eighteen months, imposed in the District Court at Campbelltown on 23 November 1993. The judge appropriately commented that the offence was a serious one, and that people who supply prohibited drugs must be dealt with in an appropriately salutary way. He noted as an aggravating feature that at the date of the offence the prisoner was on bail, pending the hearing of an appeal following conviction for offences committed on 30 July 1998 and 23 December 1998, and on bail pending a hearing in relation to another offence allegedly committed on 23 December 1998.

The written submissions filed on behalf of the applicant raised only one matter. The ground of appeal is expressed in the following terms:


"The sentence imposed on the applicant expressly disallowed credit on sentence because he had not pleaded guilty to the offence but, in the particular circumstances of the applicant's case, some discount should have been allowed."

What Judge Nield said in relation to the prisoner's plea was this:

"The prisoner does not get any discount which would have followed a guilty plea. An offender cannot be forced to plead guilty, no matter how strong the strength of the Crown case. And a prisoner cannot be punished more severely for having pleaded not guilty in the face of a strong Crown case. However, as I have said already, the prisoner does not obtain any discount in sentence which would have followed a guilty plea."

11    The submission on behalf of the applicant comes down to this: the indictable offence of supplying a prohibited drug has the following elements: (1) possession of the requisite quantity of the drug; (2) possession of that quantity of the drug for the purpose of supply. In respect of the second element, the Legislature deems it to be established by the mere fact of possession of such quantity of the drug, unless the accused establishes on the balance of probabilities that his possession of the drug was not for the purpose of supply.

12    The applicant admitted to police, and at the trial did not contest, the first element of the offence. He disputed the second element and so undertook the task of persuading the jury on the balance of probabilities that the drug was in his possession for his own use. Because he did not contest the first element, but only the second, he should receive a discount on his sentence, upon a principle analogous to that established by statute and common law in respect of a plea of guilty.

13    Inasmuch as a plea of guilty attracts a discount, not merely because it is an indication of contrition, but upon purely utilitarian grounds (R v Thomson and Houlton (2000) NSWLR 383) so on purely utilitarian grounds the judge ought to have allowed a discount in this case.

14    The oral submissions put today went a little further, and suggested that the willingness of the applicant to admit possession of the drug, as he did in the course of the recorded interview, and not to contest that issue at the trial might also be seen as some evidence of contrition attracting a discount, not in the manner of a plea of guilty but in the manner in which ordinarily any genuine expression of contrition is viewed.

15    Counsel's written submissions sought to justify a claim for discount by comparing the relevant statute law of this State with the law in other jurisdictions; for example, in England, where the Crown is required to prove the intent to supply without the benefit of a deeming provision, and under the Commonwealth Customs Act where, in respect of a prosecution for possession of a trafficable quantity, the question of an absence of intention to supply arises only in the sentencing stage of the proceedings.

16    With respect, those considerations are simply irrelevant to the present case. What this Court has to apply is the law of New South Wales, the substance of which is as set out above.

17    The argument put orally today that the admission of possession of the drug should have been viewed by the sentencing judge as a display of contrition seems to me to be entirely without merit. The fact of the matter is that the applicant was found by the police to be in possession of those drugs. They were shown to him in the course of the electronically recorded interview and his admission of his possession of them is recorded both visually and audibly.

18    The argument that a discount should have been allowed on a utilitarian basis analogous to that applicable in respect of a plea of guilty is not supported by any authority. In Thomson v Houlton supra there is nothing in the judgment to suggest that a discount of sentence should be allowed on utilitarian grounds in respect of conduct of the applicant, short of a plea of guilty.

19    It is, of course, well established that the applicant may receive credit in the sentencing stage because, for example, of voluntary surrender to the police and assistance given to the police in the investigation of the crime, or in relation to unrelated matters, but it was not and could not have been suggested that this applicant was entitled to any discount in those respects.

20    It is not necessary in this appeal to attempt to determine whether as a matter of principle there is a right in every case to a sentencing discount by reason of the making of sensible admissions which shorten the trial because, as it seems to me, even if the sort of principles which the applicant contends were clearly established, the facts of this case would not attract its application in any way beneficial to him.

21    The fact is that even if the Crown case had been contested in every respect, the trial would still have been very brief. The Crown case that the applicant was in possession of the relevant amount of the drug was not only not contested but was, realistically, impossible to contest. The duration of the trial was not significantly reduced by reason of the stance adopted by the applicant.

22    In the absence of a plea of guilty, a judge and jury were required, as were a Crown Prosecutor and instructing officer. Court staff were still required. Witnesses were still required. In short, any utilitarian value which could be attributed to the accuser’s willingness to admit those elements of the offence in respect of which the Crown bore the onus was minuscule.

23    For those reasons, I propose that leave to appeal be granted but that the appeal be dismissed.

CARRUTHERS AJ : I agree. The orders of the Court will be as proposed by Badgery-Parker AJ.

BADGERY-PARKER AJ : I turn then to the second matter, the appeal against the sentence imposed by Judge Howie. Since the Court has not interfered with the sentence imposed by Judge Nield, there is no need for this Court to make any adjustment in relation to the sentence imposed by Judge Howie.

In respect of that matter I propose simply that the appeal be struck out.

CARRUTHERS AJ : I agree. The appeal will be struck out.

oOo