Regina v Donnelly, Regina v Donnelly [2001] NSWCCA 203

New South Wales Court of Criminal Appeal

CITATION : Regina v Donnelly, Regina v Donnelly [2001] NSWCCA 203 FILE NUMBER(S) : CCA 60835/99; 60662/99 HEARING DATE(S) : 09/05/01 JUDGMENT DATE : 9 May 2001

PARTIES : Regina Shaun Vincent Patrick Donnelly JUDGMENT OF : Carruthers AJ at 1; Badgery-Parker AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/1143; 00/11/0412 LOWER COURT JUDICIAL Neild J; Howie J OFFICER :

COUNSEL : J Busuttil- Applicant L M B Lamprati- Crown SOLICITORS : N J O'Connor- Applicant S E O'Connor- Crown CATCHWORDS : Criminal law- sentencing- - possession of prohibited drug- - supply or personal use- - consideration of a discount after guilty plea- - elements of the offence. Correctional Centres Act 1952 LEGISLATION CITED : Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Customs Act 1901 CASES CITED: R v Thomson and Houlton (2000) 49 NSWLR 383 DECISION : Appeal struck out

IN THE COURT OF CRIMINAL APPEAL

60835/99 & 60662/99

CARRUTHERS AJ BADGERY-PARKER AJ

WEDNESDAY 9 MAY 2001

REGINA v SHAUN VINCENT PATRICK DONNELLY JUDGMENT

1 CARRUTHERS AJ: I will ask Badgery-Parker AJ to give the first judgment.

2 BADGERY-PARKER AJ: In the District Court at Parramatta on 3 November 1999 the applicant, Shaun Vincent Patrick Donnelly, was indicted on a charge that on 24 March 1999 at Guildford he supplied the prohibited drug Methylamphetamine in an amount of 10.9 grams, which exceeds the trafficable quantity. He pleaded not guilty. On the following day the jury returned a guilty verdict and on 10 December 1999 his Honour Judge Nield imposed a total sentence of thirty-five months imprisonment, commencing 4 November 1999 and to expire on 3 October 2002, in respect of which his Honour fixed a minimum term of twenty-six months, which, having commenced on 4 November 1999, would expire on 3 January 2002, and an additional term thereafter of nine months. 3 The full term of thirty-five months took into account that the applicant had served approximately one month in custody in respect of the offence, having been arrested on 24 March 1999 and not released on bail until 22 April of that year. 4 On 31 March 2000 the applicant was an inmate of the Industrial Training Centre in the Long Bay Training complex serving the sentence imposed upon him at Parramatta. On that day he escaped. He was arrested later the same day and returned to custody. 5 At the Downing Centre District Court on 17 August 2000, before his Honour Judge Howie, he pleaded guilty to a charge of escape from lawful custody, contrary to s 30 of the Correctional Centres Act. In addition, he asked the sentencing judge to take into account three matters on a Form 1 under the provisions of the Criminal Procedure Act; namely, one offence of stealing a motor vehicle and two offences of larceny, all committed in the course of the escape. He was sentenced to imprisonment for a term of twenty-one months, to commence at the expiration of the minimum term of the previous sentence; that is, on 4 January 2002, and to expire on 3 October 2003. In respect of that sentence his Honour fixed a non-parole period of ten months which, having commenced on 4 January 2002, would expire on 3 November 2002. 6 Before this Court now are two applications for leave to appeal, one in respect of the sentence imposed by Judge Nield and one in respect of the sentence imposed by Judge Howie. However, in relation to the second matter, the applicant does not assert any error on the part of the sentencing judge. The application has been lodged only because, in the event that the appeal against the sentence imposed by Judge Nield should succeed, it would be necessary to adjust the commencement date of Judge Howie's sentence, and to make consequential adjustments to the other relevant dates. 7 At the trial there was no issue about the applicant's possession of a trafficable quantity of Methylamphetamine. His possession of such an amount of that prohibited drug attracted the provisions of s 29 of the Drug Misuse and Trafficking Act of 1985. The offence of supply is created by s 25 of that Act which provides that a person who supplies a prohibited drug is guilty of an offence. By s 3 the concept of "supply" is defined as including, inter alia, "having in possession for supply". S 29 provides as follows: "A person who has in his or her possession an amount of a prohibited drug which is not less than the trafficable quantity of the prohibited drug shall, for the purposes of this division, be deemed to have the prohibited drug in his or her possession for supply, unless -