R v "White" [2003] NSWCCA 135

New South Wales Court of Criminal Appeal

CITATION : R v "White" [2003] NSWCCA 135 HEARING DATE(S) : 30 April 2003 JUDGMENT DATE : 13 May 2003

JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 2 DECISION : Leave to appeal granted, but appeal dismissed.

CATCHWORDS : appeal against sentences - plea of guilty Crimes Act 1900 (NSW), s178BA LEGISLATION CITED : Firearms Act 1996 (NSW), s7(1) Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, s44 CASES CITED : R v Thomson ad Houlton [2000] NSWCCA 309; 49 NSWLR 383 PARTIES : Crown - Respondent "White" - Applicant FILE NUMBER(S) : CCA 60059/03 COUNSEL : LMB Lamprati - Crown SC Russell - Applicant SOLICITORS : SE O'Connor - Crown DJ Humphreys - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0217 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60059/03

WOOD CJ at CL SIMPSON J

Tuesday 13 May 2003 REGINA v "WHITE" Judgment 1 WOOD CJ at CL: I have read in draft form the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour. 2 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 2 August 2002 following his pleas of guilty to a series of charges. Two charges were of obtaining financial advantage by deception, brought pursuant to s178BA of the Crimes Act 1900, which carry a maximum term of imprisonment for five years; and twelve were counts of possession of firearms without a licence, brought pursuant to s7(1) of the Firearms Act 1996, which section prescribes a maximum penalty of imprisonment for ten years. In addition, the applicant asked that four additional offences be taken into account pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Form 1 offences"). These offences involved possession of a Police Service badge, police uniform and police identification badge, and another of obtaining a financial advantage by deception. On each of the deception offences the applicant was sentenced to imprisonment for two and a half years with a non-parole period of eighteen months, both to commence on 2 August 2002 and be served concurrently. A non-parole period of eighteen months was specified, to expire on 1 February 2004. The judge stated that he had taken one of the Form 1 offences into account on one of these charges. He did not otherwise indicate how he took into account the remaining Form 1 offences. On each of the firearms charges the applicant was sentenced to imprisonment for five years with a non-parole period of three years, these sentences all to be served concurrently with one another, but cumulatively upon the non-parole period specified in respect of the sentences previously imposed and therefore to commence on 2 February 2004. The total head sentence was therefore six and a half years, with an effective non-parole period of four and a half years. Pursuant to s44 of the Crimes (Sentencing Procedure) Act, the judge found special circumstances warranting departure from the ratio between the head sentence and the non-parole period otherwise specified in the section. The reason he gave for his determination was that the applicant will be required to serve his sentences in protective custody, under more onerous than normal conditions.