Regina v Michael John Fursey [2004] NSWCCA 44

New South Wales Court of Criminal Appeal

CITATION : Regina v Michael John Fursey [2004] NSWCCA 44 HEARING DATE(S) : 23 February 2004 JUDGMENT DATE : 23 February 2004

JUDGMENT OF : Ipp JA at 1; Sully J at 2; Adams J at 20 DECISION : Crown appeal dismissed.

CASES CITED : Pearce v The Queen (1998) 194 CLR PARTIES : Regina Michael John Fursey FILE NUMBER(S) : CCA 60389/03 COUNSEL : P. Ingram - Crown R. Hulme SC - Respondent SOLICITORS : S. Kavanough - Crown S. E. O'Connor - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/0114 FILE NUMBER(S) : LOWER COURT Ducker ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60389/03

IPP JA SULLY J ADAMS J

23 February 2004 REGINA v MICHAEL JOHN FURSEY Judgment 1 IPP JA: The Court is ready to deliver judgment and I ask Sully J to deliver the first judgment.

2 SULLY J: This is a Crown appeal against sentences of imprisonment passed by Ducker ADCJ in the Lismore District Court on 8 July 2003. 3 The respondent, Mr Fursey, was presented before his Honour upon an indictment containing two counts, each of which charged him with having supplied a prohibited drug: that is to say, methylamphetamine, in an amount not less than the commercial quantity. 4 In connection with the second count, the respondent asked the primary Judge to take into account on a Form 1 three matters, each of which involved, simply, the possession by the respondent of a prohibited firearm. 5 Drug-related offences of the kind charged against the respondent carry upon conviction a statutory maximum penalty of, relevantly, imprisonment for twenty years. His Honour sentenced the respondent on count 1 to imprisonment for four years with a non-parole period of three years. As his Honour explained in the remarks on sentence, those figures were arrived at by taking a starting point of a sentence of five years, discounting it by 20 per cent on account of the plea of guilty, and all other relevant subjective matters, and then apportioning a head sentence of four years strictly in accordance with the statutory norm of three quarters. 6 On count 2 his Honour sentenced the respondent to imprisonment for a fixed term of two years. That sentence was dated so as to run concurrently with the sentence passed in respect of count 1. His Honour expressed himself as having taken into account, in connection with the sentence passed on count 2, the firearm matters that had been scheduled on the Form 1. 7 It is not necessary, I think, to take time to canvass in the conventional way the detailed objective and subjective facts. It is sufficient to deal with the matter in the following way: count 1 related to three discrete supplies of methylamphetamine. Count 2 related to a deemed supply: "deemed", in the sense that there had been completed arrangements for the supply of a quantity of methylamphetamine, but that arrangement had come to nothing, because of the intervention of the police and the arrest of the respondent. 8 Speaking very broadly, the amount involved in count 2 was the same as the amount involved, in particular, in the three discrete supplies covered by count 1. 9 It seems to me that a correct starting point is this simple proposition: the sentence passed upon count 1 might be thought to have been lenient, - which is certainly my own view, - but I do not think it can be said that the sentence was outside the permissible sentencing range.