R v Cuthel [2001] NSWCCA 347

New South Wales Court of Criminal Appeal

CITATION : R v Cuthel [2001] NSWCCA 347 FILE NUMBER(S) : CCA 60677/00 HEARING DATE(S) : 10/9/01 JUDGMENT DATE : 10 September 2001

PARTIES : Regina Paul Steven Cuthel JUDGMENT OF : Sully J at 1, 37; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0127 LOWER COURT JUDICIAL Blanch CJ of District Court OFFICER :

COUNSEL : M C Grogan (Crown) R Burgess (App) SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : Sentencing - limited facts put before sentencing judge - whether sentencing judge considered disadvantages to family of appellant while appellant serving sentences - whether special circumstances - fresh evidence argued. Crimes Act 1900 LEGISLATION CITED : Drugs (Misuse and Trafficking) Act 1985 Firearms Act 1996 CASES CITED: R v Hameed (2001) NSWCCA 287 R v White (Unreported NSWCCA 30 March 1999) DECISION : Leave to appeal granted. Appeal dismissed.

- 11 -IN THE COURT OF CRIMINAL APPEAL 60677/00 SULLY J CARRUTHERS AJ Monday 10 September 2001 Regina v Paul Steven Cuthel

JUDGMENT 1 SULLY J: I invite Carruthers AJ to give the leading judgment. 2 CARRUTHERS AJ: Paul Steven Cuthel seeks leave to appeal against sentences imposed upon him by Justice Blanch Chief Judge of the District Court on 18 October 2000. On that occasion the applicant adhered to pleas of guilty to one count of unauthorised possession of a firearm, namely, a 7.65 mm calibre Mauser self-loading pistol, contrary to s 7 of the Firearms Act 1996 which carries a maximum penalty of 5 years imprisonment (the first count). 3 Further, to one count of supply prohibited drug (lysergide) contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985, which offence carries a maximum penalty of imprisonment for 15 years and/or a 2000 penalty unit fine (the second count). 4 His Honour was asked to take into account a Form 1 containing one count of supply methyl-amphetamine, one count of supply cannabis resin, and one count of possess stolen or unlawfully obtained money. 5 The third count in the indictment was one of attempt to influence a witness contrary to s 323(a) of the Crimes Act 1900 which carries a maximum penalty of 7 years imprisonment. Thus in sentencing the question of totality arose for his Honour. 6 In resolving the question of totality, his Honour imposed the following sentencing regime: 7 In relation to the first count, his Honour sentenced the applicant to a fixed term of 12 months imprisonment, to commence on 18 October 2000 and to expire on 17 October 2001. 8 In relation to the second count, the applicant was sentenced to imprisonment for a term of 3 years and 8 months, to commence on 18 October 2000 and to expire on 17 June 2004, with a non-parole period of two years and six months to expire on 17 April 2003. 9 In relation to the third count, the applicant was sentenced to a fixed term of imprisonment of 2 years to commence on 18 October 2000 and to expire on 17 October 2002. The Form 1 matters were taken into account in relation to the second count. In fixing those sentences, his Honour took into account pre-sentence custody of 4 months. So the overall sentence was 3 years and 8 months imprisonment, with a non-parole period of 2 years and 6 months, all sentences were to be served concurrently. 10 His Honour found that there were special circumstances which justified a departure from the nominal ratio. 11 The applicant was born on 5 October 1964 and his only relevant prior criminal history was the imposition of a fine at the Port Macquarie Local Court on 4 October 1995 for possession of an unlicensed firearm, and possession of prohibited drugs, being cannabis and amphetamine. 12 The proceedings before his Honour were unsatisfactory through no fault on the part of his Honour. His Honour said this in that regard: "The unusual aspect about this case is that not all the facts are before the court. That has arisen because there were negotiations between the prosecution and the defence, and a plea of guilty was entered in respect of those matters after the case was committed for trial. The statement of facts which has been tendered before the court is a very bald statement of facts, and the only other facts that I know in passing sentence are the extra facts that have been given to me during the course of the proceedings and which I have already referred to." 13 The statement of facts is bald indeed. I quote verbatim: "Police searched 23 Neeworra Ave, Narara at 2.40am on the 27th July, 1998, these premises being owned by the accused. Whilst searching the outside of these premises Police lifted a 3x2 foot slab of concrete from the bar-b-Que (sic) area and located a lunch box secreted in the fire well. Located in the lunch box was the following items; 1 Bag of beige power (sic), weight 37 grams. 2 bags of green vegetable matter, each bag weighing 31 grams $3575 in Australian currency 1 Bag of residual power, no weight. 1 Bag containing two blocks of brown resin, total weight 46 grams 1 Bag containing three tabs (LSD) 1 'A' four piece of paper containing 417 tabs(LSD) 1 Semi Automatic Mauser 7.65cl handgun secreted in a black glove. One satchel containing half an LSD tab