REGINA v MAESSEN [2004] NSWCCA 160

New South Wales Court of Criminal Appeal

CITATION : REGINA v MAESSEN [2004] NSWCCA 160 HEARING DATE(S) : 15 March 2004 JUDGMENT DATE : 15 March 2004

JUDGMENT OF : Tobias JA at 21; Adams J at 1; Smart AJ at 19 DECISION : (i) In respect of the second charge a term of imprisonment of eighteen months commencing 11 February 2003 and ending on 10 August 2004 with a non-parole period expiring 15 March 2004. The applicant to be released today and be supervised during his parole by the Probation and Parole Service; (ii) In respect of the first charge a fixed term of imprisonment of six months to commence 11 February 2003 ; (iii) In respect of the third charge a sentence of six months, the fixed term to date from 11 February 2003;

Drug Misuse and Trafficking Act 1985 s25A LEGISLATION CITED : Firearms Act 1996 Sentencing Act 1995 s44 CASES CITED : Pearce v The Queen (1998) 194 CLR 410 R v Thomson and Houlton (2000) 49 NSWLR 383 Regina

PARTIES : v

William Peter Maessen (Applicant) FILE NUMBER(S) : CCA 60415/03 COUNSEL : R Hulme SC (Crown) M Grogan (Applicant) SOLICITORS : O O'Connor (Crown) S Kavanagh (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0165 FILE NUMBER(S) : LOWER COURT Urquhart DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60415/03

TOBIAS JA ADAMS J SMART AJ MONDAY 15 MARCH 2004 REGINA v PETER WILLIAM MAESSEN

JUDGMENT 1 ADAMS J: The applicant pleaded guilty in the District Court at Coonamble on 26 March 2003 to three charges of supplying prohibited drug, namely, methylamphetamine respectively on 29 June (.74 grams) and 4 June (1.11) grams and on 5 July 2001 (.48 grams). He requested the sentencing judge to take into account three other matters arising from his possession of a small quantity of ammunition that he probably had well over ten years and may well have acquired when he had a firearms licence, a "mini crossbow", which he told police he was not aware that the possession of which was an offence. These offences comprised these charges under the Firearms Act 1996 and the possession of nine grams of cannabis which on all accounts is a very small quantity indeed, all of which were found by police when the premises were searched following the offender's arrest. 2 The offender was sentenced to three concurrent terms of two years nine months' imprisonment on each charge, commencing on 11 February 2003, with a non-parole period of one year and nine months. When paroled he was ordered to accept the supervision of the Probation and Parole Service. The applicant seeks leave to appeal to this Court upon the ground that his sentences were excessive. 3 When the applicant was arrested he denied involvement in the offences but otherwise pleaded guilty at the first practical opportunity. He was initially charged under s25A of the Drug Misuse and Trafficking Act 1985 for which offence he was committed for trial. 4 Considered separately the quantity of drug supplied was the indictable quantity but less than a small trafficable quantity as defined by the drugs legislation. As a practical matter the applicant did not have the opportunity of pleading guilty to the individual supplies until he was indicted and the charge under s25A not pressed by the Crown. It is of great significance in the circumstances of this case, in my view, that these charges could and would have properly been dispensed of summarily with consequences that the maximum term of imprisonment in respect of each charge would have been two years' imprisonment, rather than fifteen years' imprisonment. 5 In his evidence before the learned sentencing judge the applicant expressed regret for his offences. His Honour said that whilst this contained "a modicum of sincerity, there is more than a modicum of sorrow for being caught". The learned trial judge took account of the strong Crown case in assessing an overall discount of 18.25 per cent referable to the utilitarian factor identified in R v Thomson and Houlton (2000) 49 NSWLR 383. It is obvious that his Honour considered that special circumstances justified a reduction from the non-parole period calculated in accordance with the formula specified in s44 of the Sentencing Act 1995. 6 Mr Hulme SC for the applicant submitted firstly that the learned sentencing judge erred in not extending the full benefit of the available discount range specified in Thomson and Houlton (49 NSWLR at 418) per Spigelman CJ – "In my opinion the appropriate range for a discount is from 10-25 per cent. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be fathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.