Regina v Maessen - [2004] NSWCCA 160

CITATION: REGINA v MAESSEN [2004] NSWCCA 160

HEARING DATE(S): 15 March 2004

JUDGMENT DATE:
15 March 2004

JUDGMENT OF: Tobias JA at 21; Adams J at 1; Smart AJ at 19

DECISION: (i) In respect of the second charge a term of imprisonment of eighteen months commencing 11 February 2003 and ending on 10 August 2004 with a non-parole period expiring 15 March 2004. The applicant to be released today and be supervised during his parole by the Probation and Parole Service; (ii) In respect of the first charge a fixed term of imprisonment of six months to commence 11 February 2003 ; (iii) In respect of the third charge a sentence of six months, the fixed term to date from 11 February 2003;

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 s25A
Firearms Act 1996
Sentencing Act 1995 s44

CASES CITED: Pearce v The Queen (1998) 194 CLR 410
R v Thomson and Houlton (2000) 49 NSWLR 383

PARTIES :

Regina
v
William Peter Maessen (Applicant)

FILE NUMBER(S): CCA 60415/03

COUNSEL: R Hulme SC (Crown)
M Grogan (Applicant)

SOLICITORS: O O'Connor (Crown)
S Kavanagh (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0165

LOWER COURT
JUDICIAL OFFICER : Urquhart DCJ

IN THE COURT OF

CRIMINAL APPEAL

60415/03

TOBIAS JA

ADAMS J

SMART AJ

MONDAY 15 MARCH 2004

REGINA v PETER WILLIAM MAESSEN

JUDGMENT

1 ADAMS J: The applicant pleaded guilty in the District Court at Coonamble on 26 March 2003 to three charges of supplying prohibited drug, namely, methylamphetamine respectively on 29 June (.74 grams) and 4 June (1.11) grams and on 5 July 2001 (.48 grams). He requested the sentencing judge to take into account three other matters arising from his possession of a small quantity of ammunition that he probably had well over ten years and may well have acquired when he had a firearms licence, a “mini crossbow”, which he told police he was not aware that the possession of which was an offence. These offences comprised these charges under the Firearms Act 1996 and the possession of nine grams of cannabis which on all accounts is a very small quantity indeed, all of which were found by police when the premises were searched following the offender’s arrest.

2 The offender was sentenced to three concurrent terms of two years nine months’ imprisonment on each charge, commencing on 11 February 2003, with a non-parole period of one year and nine months. When paroled he was ordered to accept the supervision of the Probation and Parole Service. The applicant seeks leave to appeal to this Court upon the ground that his sentences were excessive.

3 When the applicant was arrested he denied involvement in the offences but otherwise pleaded guilty at the first practical opportunity. He was initially charged under s25A of the Drug Misuse and Trafficking Act 1985 for which offence he was committed for trial.

4 Considered separately the quantity of drug supplied was the indictable quantity but less than a small trafficable quantity…

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.

Continue reading Regina v Maessen

Details

AGLC: Regina v Maessen [2004] NSWCCA 160
Case: [2004] NSWCCA 160
Decision Date: 15 March 2004

CaseChat Overview and Summary

In the matter of Regina v Peter William Maessen, the Court of Criminal Appeal of New South Wales assessed the applicant's appeal against the sentences imposed on him for supplying methylamphetamine in various quantities. The applicant had pleaded guilty to three charges of supplying the drug in quantities of 0.74 grams, 1.11 grams, and 0.48 grams, and also faced charges under the Firearms Act 1996 and for possession of a small quantity of cannabis. The District Court sentenced Maessen to three concurrent terms of two years and nine months' imprisonment for each drug supply charge, with a non-parole period of one year and nine months. The applicant appealed, arguing that his sentences were excessive. The key legal issues involved whether the sentencing judge correctly applied the principles of discount for a guilty plea and the relevance of remorse, and whether the sentences were disproportionate to the offences committed.

The Court of Criminal Appeal found that the sentencing judge had erred in not fully applying the discount for the utilitarian benefit of the applicant's early guilty plea. The discount for a plea entered at the earliest practical opportunity should have been towards the higher end of the 10-25 per cent range. The Court also held that the sentencing judge incorrectly considered the limited degree of remorse shown by the applicant when determining the discount, which should have been assessed separately. The Court emphasized the importance of consistency and coherence in sentencing, noting that the discount should not be capriciously reduced. The Court further observed that the objective seriousness of the drug supply offences was low, with no evidence suggesting that the applicant was involved in a larger drug trade. The sentences imposed by the District Court were deemed manifestly excessive given the small quantities of drugs involved and the nature of the offences. The Court substituted the sentences with terms of imprisonment of eighteen months, six months, and six months, respectively, for the three drug supply charges, with appropriate non-parole periods.

Orders