Regina v Jasper

[2004] NSWSC 155

CITATION:	Regina v Jasper [2004] NSWSC 155
HEARING DATE(S):	11 March 2004
JUDGMENT DATE:	11 March 2004
JUDGMENT OF:	Dunford J
DECISION:	Prisoner sentenced.
CATCHWORDS:	Criminal Law - Sentencing - supply heroin - prisoner previously sentenced for another offence in respect of the same criminal activity.
LEGISLATION CITED:	Crimes Act 1900 s 249 Crimes (Sentencing Procedure) Act 1999 s 32 Drug Misuse and Trafficking Act 1985 s 32
CASES CITED:	R v Jasper [2003] NSWSC 285 R v Jasper [2003] NSWSC 287 R v Jasper [2003] NSWCCA 186 R v Patison [2002] NSWSC 1248 R v Patison [2003] NSWCCA 171
PARTIES :	Regina v Matthew John Jasper
FILE NUMBER(S):	SC 70088/02
COUNSEL:	J Gibson - Crown J Dailly SC - Accused
SOLICITORS:	S E O'Connor - Crown Walter Madden Jenkins - Accused

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

THURSDAY 11 MARCH 2004

70088/02 REGINA v MATTHEW JOHN JASPER

SENTENCE

1 HIS HONOUR: On 27 February 2003, the prisoner was arraigned before me on an indictment dated 31 October 2002 containing six counts. By his counsel he sought a ruling that the evidence sought to be relied on by the Crown to support two of the counts was not sufficient to constitute the offences charged, namely, supply not less than a large commercial quantity of heroin and, in the alternative, supply heroin.

2 On that day, I ruled in favour of the prisoner and quashed those two counts, indicating that I would give my reasons at a later date, which I ultimately did on 11 April 2003: R v Jasper [2003] NSWSC 285.

3 The prisoner thereupon pleaded guilty to the remaining counts in the indictment of 31 October 2002 and adhered to pleas of guilty formerly entered before Barr J in respect of an indictment dated 13 December 2002. He also asked that a number of other offences be taken into account, in accordance with the Crimes (Sentencing Procedure) Act 1999, s 32.

4 On 11 April 2003, I sentenced him in respect of all those offences, imposing terms of imprisonment totalling 7 years with non-parole periods totalling 5 years: R v Jasper [2003] NSWSC 287. The overall sentences imposed were the same as those previously imposed on David Phillip Patison, his co-offender in respect of most of the offences: R v Patison [2002] NSWSC 1248.

5 Subsequently, my judgment quashing the two counts in the indictment of 31 October 2002 was reversed by the Court of Criminal Appeal: R v Jasper [2003] NSWCCA 186 and the Crown appeal against the sentences imposed on Patison was dismissed: R v Patison [2003] NSWCCA 171.

6 The prisoner has now been arraigned on a fresh indictment on the two counts formerly struck from in the indictment of 31 October 2002 and has pleaded not guilty to the count of supply not less than a large commercial quantity of heroin, but guilty to the alternative lesser charge of supply heroin; and the Crown has accepted that plea in full satisfaction of the indictment.

7 The facts are set out in the document entitled “Chronology and Facts” (Ex C). It is not necessary to repeat them in detail, suffice to say that the prisoner and his co-offender, Patison, agreed with one Vincent Caccamo that in return for payments agreed at $1000 per week, they would stand back and let him continue his illegal drug trafficking, particularly the supply of heroin, with knowledge that the moneys from which they were being paid the bribes were the proceeds of his heroin dealings.

8 This is the same criminal activity in respect of which the prisoner was sentenced on 11 April 2003; see paras [9], [28] and [29] of my Remarks on Sentence on that day; and were the sentences imposed in respect of counts 3 and 4 in the earlier indictment.

9 In respect of those matters he was sentenced, in each case, to a fixed term of 2 years to commence on 26 February 2006. However, at the same time and in respect of the same indictment he was also sentenced to imprisonment for 4 years to commence on the same day, 26 February 2006, with a non-parole period of 2 years in respect of the second count in that indictment, namely, corruptly soliciting from the same Vincent Caccamo the sum of $80,000 as a reward for, or otherwise on account of, showing favour to Vincent Caccamo in relation to the affairs or business of his principal, namely, the Crown.

10 In respect of all the offences involving Caccamo and including related matters on a Form 1, Patison received an effective sentence of 5 years with a non-parole period of 3 years, whilst the prisoner received an effective sentence of 4 years with a non-parole period of 2 years.

11 As to the objective criminality of the offences involved and the subjective features of the prisoner, including his relationship to Patison, I refer to my Remarks on Sentence on 11 April 2003, which I shall not repeat but which should be deemed to be incorporated in these Remarks.

12 In all the circumstances it is now necessary to have regard to the following principles:

(a) The seriousness of the present charge, in that it carries a maximum penalty of 15 years: Drug Misuse and Trafficking Act 1985 s 32(1)(c), whereas the most serious offence for which the prisoner was sentenced under the earlier indictment relating to the Caccamo matters was solicit corrupt reward, which carries a maximum penalty of 7 years: Crimes Act 1900 s 249B.

(b) That the prisoner has already, on 11 April 2003, been sentenced in respect of the criminal activity involved in this fresh offence and should not be penalised twice in respect of the same illegal conduct. The Crown has submitted that there is, in relation to this charge, the additional element of the actual supply of heroin, which was not present in the earlier matters, but in my view both of them involved facilitating the supply of heroin by others in return for the bribe.

(c) The principle of totality.

(d) The maintenance of parity with his co-offender, Patison, both overall and in respect of the offences relating to Caccamo including the related matters on a Form 1 in the case of Patison.

(e) That the Court of Criminal Appeal has already held that the sentences imposed on Patison were within the proper range.

13 Having regard to all these considerations, I consider that the appropriate course is to impose a sentence greater than any of the sentences previously imposed on the prisoner in respect of the Caccamo matters and the same as that imposed on Patison for the identical offence, but to make the sentence concurrent with other sentences previously imposed, so that the overall length of the sentences is not increased.

14 Matthew John Jasper, on the charge that between 20 January 2000 and 16 December 2000 at Sydney you did supply a prohibited drug, namely heroin, I sentence you to imprisonment for 5 years, the sentence to commence on 27 February 2005 and expire on 26 February 2010. I fix a non-parole period of 3 years to expire on 26 February 2008. The sentence is to be concurrent with the sentences imposed on you on 11 April 2003 and the earliest date on which you will be eligible for release on parole will be 26 February 2008.

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Last Modified: 03/18/2004