New South Wales Court of Criminal Appeal Regina v Gregory Paul Magtoto [2005] NSWCCA 180 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 9 May 2005 JUDGMENT DATE: 9 May 2005 JUDGMENT OF: Hulme J at 10, 12; Barr J at 1; Buddin J at 11 DECISION: Leave to appeal granted. Appeal dismissed. PARTIES: Regina, Gregory Paul Magtoto FILE NUMBER(S): CCA 2005/285 H Grahame COUNSEL: W Dawe QC S E O'Connor SOLICITORS: S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0463 LOWER COURT JUDICIAL OFFICER: Gibson QC, ADCJ IN THE COURT OF CRIMINAL APPEAL 2005/285 HULME J BARR J BUDDIN J 9 MAY 2005 REGINA v GREGORY PAUL MAGTOTO Judgment 1 BARR J: The applicant Gregory Paul Magtoto seeks leave to appeal against a sentence imposed in the District Court after he pleaded guilty to one offence of the ongoing supply of a prohibited drug, namely heroin. The sentence comprised a non-parole period of 2 years imprisonment and a balance of 8 months. The maximum custodial sentence attracted by the offence is imprisonment for twenty years. 2 The applicant was dealing in drugs in Kings Cross on the afternoon of 8 January 2004. He supplied to an undercover police operative a balloon containing heroin. He received $50 for the sale. About ninety minutes later he made a similar supply for a similar price. On the following day following a further request for supply, he supplied, as heroin, a substance contained in a plastic bag. The contents turned out to be sugar. On those facts the offence was made out. 3 The applicant was committed for trial to the District Court and indicated an intention to plead not guilty. Accordingly, a trial date was fixed. Some twenty days before the trial was due to begin, he changed his mind. His counsel had the matter listed before a judge and the applicant pleaded guilty. 4 There are two grounds of appeal. The first asserts that the sentencing judge failed to give an appropriate discount for the plea of guilty, and that although his Honour referred to the plea and its timing and said that he took it into consideration as some evidence of contrition, there was no mention of any discrete allowance for the utilitarian value of the plea. There was no quantification of any discount or allowance and no mention of Section 22 of the Crimes (Sentencing Procedure) Act 1999. 5 His Honour gave an admirably succinct judgment. Having reviewed the facts, his Honour observed that the applicant had declined to make an interview with the police, and after committal, had pleaded guilty. His Honour went on to observe that there was some dispute as to whether he had entered his plea, but whether there was a dispute or not does not seem to matter because his Honour went on to state the intention to allow for the plea of guilty. His Honour went on to deal with subjective matters and to consider the prospects of rehabilitation, which he did not rank high. His Honour then stated an intention to take into consideration the plea of guilty as some evidence of contrition. His Honour referred to other matters in Section 21A of the Crimes (Sentencing Procedure) Act. 6 It seems clear to me from the two separate references to the plea of guilty, the first made in the context of timing, that his Honour was taking into account the plea both as to its utilitarian value and as evidence of contrition. It seems to me that there can be no other reason for his Honour's having dealt twice with the subject of the plea. His Honour is a most experienced sentencing judge and I would not infer from any failure to nominate a proportion or percentage of discount or any reference to Section 22 of the Crimes (Sentencing Procedure) Act as indicating that his Honour had overlooked the utilitarian value of the plea of guilty. 7 The second ground of appeal complains that the sentence is manifestly excessive. It is submitted that the applicant had never before been convicted of supplying a prohibited drug and had spent little time in custody. He was dealing with heroin because he was addicted to it. His addiction had followed upon injuries he received in an accident. It is submitted that, having said that this offence fell below the mid-range of seriousness, his Honour imposed what could only be understood, after allowance for the plea, as a mid-range sentence. 8 The applicant was a 40 year old man with a substantial criminal history. The submission that he had never been convicted of dealing with drugs is correct. However, there were serious aggravating circumstances. In November 2002 he was dealt with in the Local Court for larceny and was given the benefit of a bond to be of good behaviour for 2 years. That bond was in force at the time of this offence. In November 2003 he was convicted of furnishing false and misleading information, two counts of having goods in his custody reasonably suspected of having been stolen and assault occasioning actual bodily harm. On two of those offences he was given the benefit of a 3-year bond and a twelve-month suspended sentence. That bond and that sentence were in force at the time of this offence. 9 In the circumstances the sentence was unremarkable. I would grant leave to appeal but would dismiss the appeal. 10 HULME J: I agree. 11 BUDDIN J: I also agree. 12 HULME J: The order of the Court is that leave to appeal is granted but the appeal is dismissed. ************ 13/05/2005 - Coversheet amendment - Paragraph(s) N/A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.