Regina v Maxwell John CHALMERS [2000] NSWCCA 206

New South Wales Court of Criminal Appeal

CITATION : Regina v Maxwell John CHALMERS [2000] NSWCCA 206 FILE NUMBER(S) : CCA 60498/99 HEARING DATE(S) : 29/05/2000 JUDGMENT DATE : 29 May 2000

PARTIES : Regina Maxwell John CHALMERS JUDGMENT OF : Sully J at 1; Adams J at 26

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0246 LOWER COURT JUDICIAL Nader ADCJ OFFICER :

COUNSEL : D. Frearson - Crown D. S. Fitzgibbon - Applicant SOLICITORS : S. E. O'Connor - Crown Woodgate Morgan - Applellant

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Criminal Appeal Act 1912 DECISION : Stood over generally with liberty to restore to list on seven days' notice in writing

IN THE COURT OF CRIMINAL APPEAL

60498/99

SULLY J ADAMS J

29 May 2000

REGINA v Maxwell John CHALMERS

JUDGMENT

1 SULLY J: This is an application by Mr Maxwell John Chalmers for leave to appeal against a sentence of imprisonment that was imposed upon him on 26 July 1999 and in an appropriately corrected form on 27 July 1999 by his Honour Nader ADCJ sitting in the District Court in Newcastle. 2 The applicant had pleaded guilty before his Honour to a charge of supply heroin, an offence contravening s 25(1) of the Drug Misuse and Trafficking Act 1985 and attracting upon conviction a statutory maximum penalty of imprisonment of 15 years and/or a fine of 2000 penalty units. 3 The sentence in fact imposed upon the applicant was one of imprisonment for a minimum term of three years and eight months with an accompanying additional term of one year and three months. 4 So far as concerns the relevant objective facts two bodies of material were placed finally before the learned primary Judge. One of those bodies of material was a statement of objective facts, which statement took the form of a written summary, that became Ex A in proceedings on sentence. 5 The facts thus summarised are set out verbatim on pp 1 and 2 of the remarks on sentence and it is not necessary now to repeat them in their fine detail. 6 The second body of material going to the objective facts of the case took the form of a version of facts put forward by the applicant, who gave evidence and whose evidence was supported, at least to some extent, by evidence given by his wife. 7 The essential features of the applicant's version of the objective facts are summarised as follows by his Honour at pp 6 and 7 of the remarks on sentence: "He claims that his wife's addiction has played a big part in these crimes. In fact I positively disbelieve the most incredible story that he gave me about his wife's involvement in this matter. It goes like this: My wife was seriously addicted and needed heroin. She had a supplier named Hoskins. Hoskins was an addict. Hoskins had a friend who wanted drugs but Hoskins did not want to admit to this friend that he was a supplier so he pretended as it were to his friend, that is Mr De Silva, that Mr Hoskins' supplier was the prisoner and Hoskins introduced the man that wanted the heroin, De Silva, to him. All this was done because the prisoner did not want to offend or displease Mr Hoskins who was supplying his wife with drugs. 8 The story really is in my view quite fantastic and, in the literal sense of the word, incredible. I do not believe it. I think it is nonsense and I think it is just a lie. In fact I am sure it is. I do not disbelieve that Mrs Chalmers was a drug addict but I think this man is simply using his wife's addiction as part of the building blocks of an excuse which he now makes to this Court. In any event, even if the story were true it would be hardly very mitigating in the circumstances." 9 The course of the proceedings before the learned primary Judge was, to say the least, disjointed and somewhat confusing. His Honour does not seem to have received from any quarter coherent and focused assistance of the kind to which he was undoubtedly entitled. In the result, as it seems to me, an unfortunate and undesirable confusion entered into his Honour's process of reasoning concerning matters which had, to say the least, the potential to bear significantly on the question, critically important to the exercise of the relevant sentencing discretion, whether the applicant's version of the relevant objective facts should be accepted in whole or in part. 10 His Honour very early in the remarks on sentence observed that he had found the applicant to be, as his Honour put it: "one of the most unconvincing witnesses I have ever listened to and I believe very little of what he said except where it is manifestly true. I believe his name; I believe that he is a diesel mechanic, or has been; but in relation to the rest of his evidence whilst I do not affirmatively disbelieve it I am unable to place enough reliance upon him to positively believe what he has said which is contentious". 11 A paragraph or so later his Honour observed that, as he understood the fact, it was not conceded by the Crown that the applicant had been introduced to the person with whom he had conducted the relevant dealing by a third party named Jimmy Hoskins. His Honour said: "So there may have been a Jimmy Hoskins, there may not have been a Jimmy Hoskins, I just cannot say." 12 His Honour then dealt with various other aspects of the proceedings; and came presently to the evaluation of the applicant in the terms which I have earlier quoted from pp 6 and 7 of his Honour's remarks on sentence.