REGINA v. BENTLEY [2003] NSWCCA 360

New South Wales Court of Criminal Appeal

CITATION : REGINA v. BENTLEY [2003] NSWCCA 360 HEARING DATE(S) : Wednesday 5 November 2003 JUDGMENT DATE : 9 December 2003

JUDGMENT OF : Barr J at 1; Greg James J at 2; Howie J at 101 DECISION : Leave to appeal granted; appeal dismissed.

CATCHWORDS : Criminal law - appeal - conviction and sentence - whether failure to withdraw a direction might have affected the jury deliberations - whether an alternative count should have been left to the jury - whether a basis for sentence to be reduced as having to be served in onerous circumstances. LEGISLATION CITED : Drug (Misuse & Trafficking) Act 1985 Crimes (Sentencing Procedure) Act 1999 Ita [2003] NSWCCA 174 CASES CITED : Sanderson (NSWCCA, unreported 18 July 1994) Totten [2003] NSWCCA 207 PARTIES : REGINA v. BENTLEY, Paul Christopher FILE NUMBER(S) : CCA No. 60273 of 2003 COUNSEL : Crown: P. Miller App: C.B. Craigie, SC./P. Pearsall SOLICITORS : Crown: C.K. Smith App: R. Cummins

LOWER COURT District Court JURISDICTION : LOWER COURT 00/51/0204 FILE NUMBER(S) : LOWER COURT Ducker, DCJ. JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL No. 60273 of 2003

BARR, J. GREG JAMES, J. HOWIE, J.

TUESDAY 9 DECEMBER 2003 REGINA v. PAUL CHRISTOPHER BENTLEY Judgment

1 BARR, J: I agree with Greg James, J. 2 GREG JAMES, J: Paul Christopher Bentley appeals against his conviction following a trial before Ducker, DCJ. and a jury in the District Court of New South Wales at Lismore. He also seeks leave to appeal against sentence. His conviction was for the offence provided for by s.25A of the Drug (Misuse & Trafficking Act) 1985 of supply prohibited drugs on an ongoing basis. The drug in question was heroin. It was alleged he had supplied a police undercover operative with 0.27 grams of the drug on 14 September 2000, 0.38 grams on 15 September 2000 and 0.25 on 16 September 2000, on each occasion receiving payment of $120.00. That is to say, it was alleged that he had supplied in a space of three days in a total of three sales an amount of 0.9 grams for the total sum of $360.00. 3 The first two supplies were said to have occurred inside premises at 42 Ballina Street, Lismore, the third supply immediately outside those premises. 4 It was the case for the appellant at the trial that no such supplies occurred, notwithstanding an attempt or attempts by the police undercover operative at those premises on at least one occasion, probably 16 September 2000 or 18 September 2000, to procure a supply to her. This was a case the jury obviously rejected. That case was supported by the assertion that the evidence of that operative and such evidence as supported her accounts of the supplies were fabricated. 5 The maximum penalty prescribed by that Act for that offence is 3,500 penalty units or imprisonment for 20 years, or both. The appellant was sentenced by his Honour to imprisonment for three years to commence on 20 March 2002 and to expire on 19 March 2005, with a non-parole period of 27 months, to commence on 20 March 2002 and to expiring on 19 June 2004. 6 Following his arrest, the applicant had been detained in custody from 21 September 2000 until 15 February 2001. On 26 November 2001, the appellant had pleaded guilty at the Lismore District Court and was apparently again remanded in custody, in which custody he remained until 27 February 2002 when leave was granted to him to withdraw his plea of guilty. Thereafter he remained on bail until 22 November 2002 when he was found guilty and remanded in custody. 7 The trial judge had fixed the commencement date for the sentences bearing in mind these broken periods of custody and had taken those periods of custody into account when fixing the length of the sentence and non-parole period.