R v Virgin [2000] NSWCCA 307

New South Wales Court of Criminal Appeal

CITATION : R v Virgin [2000] NSWCCA 307 FILE NUMBER(S) : CCA 60741/99 HEARING DATE(S) : 12/07/00 JUDGMENT DATE : 21 August 2000

PARTIES : Regina Kim Robert Virgin JUDGMENT OF : James J at 1; Bell J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0273 LOWER COURT JUDICIAL Kirkham DCJ OFFICER :

COUNSEL : P Hock - Crown P M Winch - Applicant SOLICITORS : S E O'Connor - Crown T A Murphy - Applicant

R v Bloomfield (1998) 44 NSWLR 734 CASES CITED: R v Heard [2000] NSW CCA 107 R v Pilley (1991) 56 A Crim R 202 DECISION : Application for leave to appeal allowed; appeal allowed.

IN THE COURT OF CRIMINAL APPEAL

60741/99

JAMES J BELL J

Monday, 21 August, 2000 REGINA v Kim Robert VIRGIN

JUDGMENT

1 JAMES J: I agree with the judgment of Bell J. The orders of the Court are as proposed by her Honour. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant on 19 November 1999 in the District Court at Gosford. On 16 September 1999, the applicant entered a plea of guilty to a single count in an indictment charging him with the supply of a prohibited drug (methylamphetamine) being an amount not less than the commercial quantity applicable to that drug. The maximum sentence in respect of this offence is one of twenty years imprisonment and/or a fine of three hundred and eighty-five thousand dollars. The applicant asked the sentencing judge to take into account a further four charges which were set out on a Form 1, pursuant to s 21 of the Criminal Procedure Act, 1986 (as it then stood). The applicant was sentenced to a minimum term of 3 years and 9 months penal servitude. An additional term of 1 year and 3 months was specified. 3 The sentence was expressed to commence on 18 May 1999. The applicant was arrested on 8 May 1999 and taken into custody where he remained until the date of sentence. His custody was solely referable to the subject charge. It is apparent that the sentencing judge intended to fix the date of commencement of the sentence from the date of the applicant's arrest. The Crown concedes that, in this limited respect, leave should be granted and the appeal be allowed in order that this Court might correct this error. 4 The facts of the case are somewhat unusual. It is appropriate to refer to them in some detail in order to understand the nature of the challenge advanced by Mr Winch, who appeared on behalf of the applicant. 5 At around 5.30 pm on Saturday 8 May 1999 the applicant travelled by taxi to the McDonald's Restaurant, Wyong. He was seen by the manager of the restaurant to alight from the taxi and sit in the gutter. He was falling from side to side. The manager approached the applicant and offered him assistance. The applicant said that he was all right and that he just wanted something to eat. Thereafter he walked unsteadily to the outside dining area of the restaurant. He appeared to be drunk. He fell off a bench on two or three occasions. It was reported that he had been throwing $50 notes into the air. After a time he entered the restaurant and ordered some food. He unzipped a "bum-bag" and pulled out a $50 note in order to pay for his order. As he produced the note, he also pulled out a small plastic bag which appeared to contain marijuana. The manager told him to put the bag away. The applicant complied and walked back to his seat, dropping his milkshake. He was observed to be rolling from side to side on the seat and periodically apologising to other patrons for his behaviour. After a time he went outside where he endeavoured to eat his meal but he appeared to be too intoxicated to do so. The manager kept an eye on him throughout this period. 6 It was reported to the manager that the applicant had offered to sell some "pot" to a young employee of the restaurant. On learning of this development the manager telephoned the Wyong Police. In the period prior to the arrival of the police the manager kept the applicant under observation. During this time the applicant continued to behave in a somewhat bizarre and uncoordinated fashion. The police attended and spoke to the applicant. On at least two occasions after the police identified themselves to the applicant he offered to supply them with drugs. These attempts appear to have related to the supply of cannabis. 7 An inspection of the applicant's bum-bag revealed two small resealable plastic bags containing cannabis. Also located in that bag were a Visa card, and various other identification cards in the name of a man 'John Honor'. The possession of the cards is the subject of one of the third charge on the Form 1 document. 8 The search of the applicant also revealed a toiletry bag which had been secreted in his trouser leg. The applicant handed the toiletry bag to police saying "It's not mine. I don't know what you're talking about". The contents of the bag included resealable plastic bags containing a white and pink coloured powder. There was also a small quantity of cannabis in another plastic bag. There were a quantity of coins and jewellery. The possession of the cannabis and the coins and jewellery are the subject of charges two and four respectively on the Form 1 document. In total the applicant was found to be in possession of 376.8 grams of methylamphetamine and 14.1 grams of cannabis leaf. The methylamphetamine was contained in a number of resealable plastic bags. 9 The applicant was taken to the Wyong Police Station where Detective Sergeant Bilton sought to interview him. Detective Bilton had difficulty rousing the applicant and observed that he appeared to be under the influence of a drug. 10 The applicant gave evidence at the sentence hearing. He was then aged 44 years. He said that he had a long standing problem of addiction to drugs. Over the years he had unsuccessfully sought treatment from a variety of rehabilitation centres. As at May 1999 he had been using amphetamines and drinking alcohol to excess. He said that he visited his drug supplier on the evening of 7 May 1999. He identified her by name in the course of his evidence. He said that on arrival he found that she was out, but her boyfriend let him into the premises. The boyfriend appeared to be affected by heroin and was "on the nod". While the applicant was present in the premises, the boyfriend went to sleep. The applicant took this opportunity to steal his supplier's cache of drugs. He lifted the lid on her washing machine and removed the toiletry bag. 11 The applicant said that he had gone to his supplier's home in order to buy amphetamines from her. He left the premises without inspecting the contents of the bag. Later when he looked inside the bag he saw "white bags and some grass". He said that he had consumed a cocktail of drugs including Rohypnol, amphetamines and alcohol. He told a psychologist, Ms Matsuo (whose report was in evidence) that he had experienced a blackout and that he had no recall of being in the McDonald's Restaurant. 12 The applicant's father also gave evidence at the sentence hearing. He said that he had been informed that his son had ripped off his drug dealer on 7 May. He went on to say "I got a phone call to see Kim down there and he was in a terrible state and he was wanting to take the drugs back to the lady he got them from". It is to be noted that Mr Virgin senior was seen to arrive at the McDonald's restaurant around the time the police attended. 13 The four matters recorded on the Form 1, which the applicant asked the sentencing judge to take into account, were:-