Regina v Hewitt

[1999] NSWCCA 264

CITATION:	REGINA v. HEWITT [1999] NSWCCA 264
FILE NUMBER(S):	CCA 60338 of 1999
HEARING DATE(S):	Wednesday 18 August 1999
JUDGMENT DATE:	18 August 1999
PARTIES :	REGINA v. HEWITT, William Michael
JUDGMENT OF:	Wood CJ at CL at 8; Greg James J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1350
LOWER COURT JUDICIAL OFFICER:	Delaney, DCJ.

COUNSEL:	Crown: L.M.B. Lamprati App: P.A. Rowe
SOLICITORS:	Crown: S.E. O'Connor App: Robert Mann Davies
CATCHWORDS:	Supply prohibited drug - custodial sentence not reserved for traffickers.
DECISION:	Leave to appeal refused

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IN THE COURT OF
CRIMINAL APPEAL

No. 60338 of 1999 CORAM: WOOD, CJ. at CL.

GREG JAMES, J.

WEDNESDAY 18 AUGUST 1999

REGINA v. WILLIAM MICHAEL HEWITT

JUDGMENT

1   WOOD, CJ. at CL: I will ask Justice Greg James to give the first judgment. 2   GREG JAMES, J: Application for leave to appeal is brought from the sentence imposed by Delaney, DCJ. in the District Court on 18 June 1999 for the crime of supplying a prohibited drug, viz. cannabis. The maximum sentence for that crime is 10 years imprisonment or 2000 penalty units, or both. 3   His Honour took into account on a schedule the crimes of supplying amphetamine and possession of LSD and ecstasy. The applicant had pleaded guilty to the crime charged and admitted his guilt of the other three offences. 4   His Honour sentenced the applicant to imprisonment for 12 months with an additional term of 12 months, having found special circumstances. His Honour declined home detention as an option. His Honour expressly noted the plea of guilty and that the applicant had no relevant prior offences. 5   A police search of the applicant's premises had disclosed the presence of 445 grams of cannabis leaf, 30 grams of powder, comprising 3.5 per cent methylamphetamine, and various other quantities of methylamphetamine as well as quantities of LSD and ecstasy. There was evidence that the total value of the drugs was $22,620. 6   It was contended that since, after extensive enquiry there was no other indicia of commercial dealing, it was not necessary for his Honour to pass a sentence of full time custody. Clearly, however, notwithstanding the applicant's favourable subjective features, considering the range and quantity of drugs and that his Honour did not accept the applicant's assertion that they were substantially for his own use, it was open to his Honour to pass such a sentence. The submission of the applicant that, in the absence of positive indicia of commercial dealing, the sentence was disproportionate or that, in the absence of evidence of trafficking in a substantial degree his Honour should not have so sentenced, is not in accordance with the authorities in this Court. Those authorities do establish that if there is a finding of trafficking in a substantial degree, a full time custodial sentence would ordinarily be required. They do not establish the converse. 7   This court is only empowered to intervene for error in the exercise of the sentencing discretion. I do not consider his Honour's approach to the matter other than exemplary. In the result, the sentence was entirely within the discretionary range, even having regard to the Judicial Commission statistics provided. There is no basis upon which it might be validly criticised. I would propose the application for leave to appeal be refused. 8   WOOD, CJ. at CL: I agree. The order of the court will be as Justice Greg James has proposed.