R v Chalmers [2000] NSWCCA 463

New South Wales Court of Criminal Appeal

CITATION : R v Chalmers [2000] NSWCCA 463 FILE NUMBER(S) : CCA 60498/1999 HEARING DATE(S) : 30/10/2000 JUDGMENT DATE : 30 October 2000

PARTIES : Regina v Maxwell John Chalmers JUDGMENT OF : Giles JA at 42; Wood CJatCL at 41; James J at 1

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

COUNSEL : D C Fitzgibbon - Applicant P G Berman - Crown SOLICITORS : Woodgate Morgan - Applicant S E O'Connor - Crown

DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL No 60498/99 GILES JA WOOD CJ at CL JAMES J Monday 30 October 2000

REGINA v MAXWELL JOHN CHALMERS JUDGMENT

1 JAMES J: This is an application by Maxwell John Chalmers for leave to appeal against a sentence imposed on him on 27 July 1999 in the District Court by his Honour Acting Judge Nader, after the applicant had pleaded guilty to one charge of supplying a prohibited drug, namely heroin. 2 Acting Judge Nader sentenced the applicant to a term of imprisonment of four years and eleven months, consisting of a minimum term of three years and eight months commencing on 26 July 1999 and an additional term of one year and three months. 3 The total term of four years and eleven months and the minimum term of three years and eight months were set by his Honour, who considered that a total term of five years would be an appropriate total sentence, in order to allow for a discrete period of pre-sentence custody of approximately one month. 4 This is not the first time this application has been before the Court of Criminal Appeal. On 29 May 2000 the application came before a bench of the Court constituted by two judges, Sully J and Adams J, pursuant to s 6AA of the Criminal Appeal Act. 5 On 29 May 2000 Sully J and Adams J did not dispose of the application but ordered that it be stood over generally with liberty to restore. The application has now been restored and has come before the present bench of the Court. 6 It is necessary to set out some of the history of the matter. 7 Although only a single charge was preferred against the applicant, the Crown alleged that on three separate occasions, on 9 October 1997, on 13 November 1997 and on 21 November 1997, the applicant had supplied heroin to the same individual, who was an undercover police operative. The applicant had, of course, been unaware at the time of each supply of heroin that the person to whom he was supplying the heroin was a police officer. In the proceedings on sentence no objection was taken on behalf of the applicant to the prosecution including all three supplies in the one charge. 8 In the proceedings on sentence both the applicant and his wife gave evidence.