Regina v Michael John Fursey

[2004] NSWCCA 44

CITATION:	Regina v Michael John Fursey [2004] NSWCCA 44
HEARING DATE(S):	23 February 2004
JUDGMENT DATE:	23 February 2004
JUDGMENT OF:	Ipp JA at 1; Sully J at 2; Adams J at 20
DECISION:	Crown appeal dismissed.
CASES CITED:	Pearce v The Queen (1998) 194 CLR
PARTIES :	Regina Michael John Fursey
FILE NUMBER(S):	CCA 60389/03
COUNSEL:	P. Ingram - Crown R. Hulme SC - Respondent
SOLICITORS:	S. Kavanough - Crown S. E. O'Connor - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/51/0114
LOWER COURT JUDICIAL OFFICER :	Ducker ADCJ

60389/03

IPP JA
SULLY J
ADAMS J

23 February 2004

REGINA v MICHAEL JOHN FURSEY

Judgment

1 IPP JA: The Court is ready to deliver judgment and I ask Sully J to deliver the first judgment.

2 SULLY J: This is a Crown appeal against sentences of imprisonment passed by Ducker ADCJ in the Lismore District Court on 8 July 2003.

3 The respondent, Mr Fursey, was presented before his Honour upon an indictment containing two counts, each of which charged him with having supplied a prohibited drug: that is to say, methylamphetamine, in an amount not less than the commercial quantity.

4 In connection with the second count, the respondent asked the primary Judge to take into account on a Form 1 three matters, each of which involved, simply, the possession by the respondent of a prohibited firearm.

5 Drug-related offences of the kind charged against the respondent carry upon conviction a statutory maximum penalty of, relevantly, imprisonment for twenty years. His Honour sentenced the respondent on count 1 to imprisonment for four years with a non-parole period of three years. As his Honour explained in the remarks on sentence, those figures were arrived at by taking a starting point of a sentence of five years, discounting it by 20 per cent on account of the plea of guilty, and all other relevant subjective matters, and then apportioning a head sentence of four years strictly in accordance with the statutory norm of three quarters.

6 On count 2 his Honour sentenced the respondent to imprisonment for a fixed term of two years. That sentence was dated so as to run concurrently with the sentence passed in respect of count 1. His Honour expressed himself as having taken into account, in connection with the sentence passed on count 2, the firearm matters that had been scheduled on the Form 1.

7 It is not necessary, I think, to take time to canvass in the conventional way the detailed objective and subjective facts. It is sufficient to deal with the matter in the following way: count 1 related to three discrete supplies of methylamphetamine. Count 2 related to a deemed supply: “deemed”, in the sense that there had been completed arrangements for the supply of a quantity of methylamphetamine, but that arrangement had come to nothing, because of the intervention of the police and the arrest of the respondent.

8 Speaking very broadly, the amount involved in count 2 was the same as the amount involved, in particular, in the three discrete supplies covered by count 1.

9 It seems to me that a correct starting point is this simple proposition: the sentence passed upon count 1 might be thought to have been lenient, - which is certainly my own view, - but I do not think it can be said that the sentence was outside the permissible sentencing range.

10 If that is the case, then it seems to me that the sentence passed on count 2, leaving aside for the moment the consideration of the Form 1 matters, but approaching the count 2 sentence in the discrete way which is required by the decision of the High Court in Pearce v The Queen (1998) 194 CLR, ought to have entailed rationally that a sentence be passed in respect of count 2 in, at least broadly, the same terms as the sentence passed in respect of count 1.

11 In other words, it would seem to me to have been a logical approach to have passed in respect of count 2 a sentence of imprisonment of four years, with a non-parole period of three years. That, I say again, is to leave out of account the Form 1 matters. They cannot, of course, be left completely out of account; and in order to bring them to account, it must follow logically that an otherwise appropriate sentence in respect of count 2 needed to be shaded upwards, as it were, in order to take into account, in a real sense, the Form 1 matters.

12 Casting about for figures to give an indicative idea only of how that might have worked out had the exercise been undertaken in accordance with proper principle, I would have thought that a sentence of six years with a non-parole period of four and a half years passed in respect of count 2 would have been appropriate.

13 Had the learned primary Judge approached the matter in that way, and thereupon considered, as, in my respectful view, his Honour ought to have done, questions of accumulation or concurrence, then the given facts of these cases would have justified at least a measure of accumulation. I would have thought that an accumulation of about one year would have been fair, so as to yield an overall result of head sentences totalling about seven years and non-parole periods totalling about five years or five and a quarter years.

14 Had that been the way things fell out in practice at the sentencing hearing, then one would have been faced on the present occasion with the need to compare and contrast effective sentences of four years with a non-parole period of three years, and a putative required sentence in the order of seven years, and a non-parole period of five or five and a quarter years.

15 The problem with that, however, lies in the fact that at the hearing at first instance, the Crown conceded in terms that it would not be appellable error to make the sentences on counts 1 and 2 fully concurrent. That concession having been made by the Crown at first instance, I do not perceive any basis of acceptable principle upon which the Crown ought now be able to resile from that situation.

16 That gives rise to the practical consequence that, using the indicative figures of which I have earlier spoken, the contrast becomes one between sentences in fact passed of four years with a non-parole period of three years, and six years with a non-parole period of four and a half years. If one then factors into that equation the well known constraints that surround a Crown appeal against sentence, and, in particular what is conventionally called double jeopardy, then the margin between the two sentences being compared narrows perceptibly; so that instead of the sentences in fact passed of four years with a non-parole period of three years, one might be looking at a putative increase to something like five years, with a non-parole period of three and a half years, or perhaps three years and nine months.

17 In other words, the practical upshot is a situation in which, speaking of the time actually to be served in terms of the non-parole period, the margin to be argued about shrinks to something in the order of nine months. It seems to me that as a matter of correct principle, applied in a broadly sensible and practical way to the given facts of the case, a margin as narrow as that does not justify the intervention of this Court.

18 I would dismiss the Crown appeal.

19 IPP JA: I agree with the remarks of Sully J. I simply add that when I first read the papers I considered that the Crown appeal had strong prospects of success. However, when I read of the concession made by Crown counsel at the trial, I came to a different view, for the reasons explained by Sully J.

20 ADAMS J: I agree.

21 IPP JA: The order of the Court will be that the appeal is dismissed.

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Last Modified: 03/09/2004