McAndrew v Regina [2006] NSWCCA 12

New South Wales Court of Criminal Appeal

CITATION: McAndrew v Regina [2006] NSWCCA 12

HEARING DATE(S): 2 February 2006

JUDGMENT DATE: 2 February 2006

JUDGMENT OF: Grove J at 1; Rothman J at 20

EX TEMPORE JUDGMENT DATE: 02/02/2006

DECISION: APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - SUPPLY (DEEMED) COMMERCIAL QUANTITY OF PROHIBITED DRUG (KETAMINE) - PRIOR RECORD NOT A MATTER OF AGGRAVATION - OBJECTIVE OFFENCE SERIOUS - NO LESSER SENTENCE WARRANTED - CRIMINAL APPEAL ACT s 6(3) APPLIED

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

R v Thompson & Houlton (2000) 49 NSWLR 383 CASES CITED: R. v Walker [2005] NSWCCA 109 R v Wickham [2004] NSWCCA 193 Veen v The Queen (No 2) 1998 164 CLR 465

PARTIES: Jamie Charles McAndrew v Regina

FILE NUMBER(S): CCA 2005/2022

COUNSEL: C. Smith (Applicant) J. Girdham (Respondent/Crown)

SOLICITORS: S. O'Connor (Legal Aid) S. Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1273

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/2022

GROVE J ROTHMAN J

2 February 2006 JAMIE CHARLES McANDREW v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hosking DCJ at Sydney District Court. 2 On 4 March 2005 the applicant was sentenced on a charge of supplying not less than the commercial quantity of a prohibited drug (ketamine) to imprisonment consisting of a non-parole of four and a half years commencing on 21 July 2004 and expiring on 20 January 2009 and a total term of seven and a half years commencing on the first mentioned date. 3 Taken into account pursuant to the Form 1 procedure was an offence of possessing another prohibited drug, methylamphetamine. 4 On 21 July 2004 police obtained a search warrant for residential premises occupied by the applicant. Upon arrival the applicant declined to open the door and it was forced by use of a sledgehammer. Thereafter police commenced their search and the applicant indicated that he would point out to police where the material, which he apprehended they were searching for, was located. Accordingly, the drugs were seized and the applicant arrested and taken to the police station where he declined to be electronically interviewed. He indicated his plea of guilty at the Local Court. 5 The applicant had a prior record, significant items being convictions in relation to cultivating cannabis in 1992, 1993 and 1999 and also for supplying cannabis in 1999 in respect of which offence he was sentenced to imprisonment for a minimum term of nine months with an additional term of six months. 6 The applicant is a disabled pensioner aged thirty-seven years. His disability relates to renal failure and there was evidence before his Honour that whilst in custody prior to sentence the applicant had been taken three times a week for dialysis. It is clear that his custody will be rendered more than usually onerous by the requirements of treatment for this condition. His Honour was aware of these circumstances and expressly took them into account. 7 It is to be noted that for the offence there is a prescribed standard non-parole period of ten years directly applicable where there is conviction after trial. Nevertheless the parliamentary prescription offers some relevant guidance and as I have observed, the non-parole period set by his Honour is less than half the standard non-parole period. 8 The first ground of appeal is focussed upon an observation in his Honour's remarks on sentence: "….in terms of S21A factors there are not many aggravating factors. The factors that I have mentioned that he has got a record of previous convictions including for this kind of offence is an aggravating factor…."