Regina v Davis [2000] NSWCCA 244

New South Wales Court of Criminal Appeal

CITATION : Regina v Davis [2000] NSWCCA 244 revised - 11/07/2000 FILE NUMBER(S) : CCA 60666/99 HEARING DATE(S) : 16 June 2000 JUDGMENT DATE : 10 July 2000

PARTIES : REGINA v Stephen John DAVIS JUDGMENT OF : Giles JA at 1; Adams J at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0299; 99/31/0156 LOWER COURT JUDICIAL Coolahan DCJ OFFICER :

COUNSEL : M Grogan - Crown C J Lyons - Appellant SOLICITORS : T A Murphy, Legal Aid Commission - Crown S E O'Connor - Appellant CATCHWORDS : SUPPLY OF PROHIBITED DRUG - appeal against sentence - possession deemed to be for supply unless proved otherwise - possession in part for own use - no findings as to amounts supplied - sentencing miscarried - R v Wong (1999) 108 A Crim R 531, R v Crombie (1999) NSWCCA 297, R v Mason (2000) NSWCCA 82 referred to - resentencing - relevance of commission of offences to finance own drug habit - R v Selim (NSWCCA, 19 May 1998, unreported), R v Markarian (NSWCCA, 1 October 1998, unreported), R v Mason doubted on this point since R v Henry (1999) 46 NSWLR 346 - relevance to amount and question of rehabilitation. DECISION : The sentences imposed below are quashed. In respect of the first count, being a sale of 1.6 gm of heroin, the appellant is sentenced to a term of 2 years' imprisonment. In respect of the second count, which involved possession for the purpose of supply of 3 gm of heroin but which was committed when he was released on bail, taking into account the charges on Form 1, the appellant is sentenced to a term of 4 years' imprisonment with a non-parole period of 2 years. The earliest date upon which the appellant will become entitled to be released on parole is 12 May 2001. In respect of the third count, which involved a single sale of 0.2 gm of heroin, the appellant is sentenced to a term of 6 months' imprisonment. In respect of the fourth count, being possession for the purpose of supply of 3 gm of heroin, the appellant is sentenced to a term of 2 years' imprisonment. Each sentence is to commence on 13 May 1999.