Simpson v Regina [2006] NSWCCA 117

New South Wales Court of Criminal Appeal

CITATION: Simpson v Regina [2006] NSWCCA 117

HEARING DATE(S): 20/03/2006

JUDGMENT DATE: 13 April 2006

JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 2; Hislop J at 3

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Criminal law - Guilty plea - Deemed supply of drugs - Custodial sentence - Alleged exceptional circumstances - Deterrence - Sentence not manifestly excessive.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25

Markarian v R [2005] 215 ALR 213 R v Simpson (2001) 53 NSWLR 704 CASES CITED: R v Tait (1979) 46 FLR 386 Regina v Ha [2004] NSWCCA 386 Regina v Yerkovic [2000] NSWCCA 281

PARTIES: Applicant - Julian Mark Simpson Respondent - Regina

FILE NUMBER(S): CCA 2006/469

COUNSEL: Applicant - Mr R. Bonnici Respondent - Mr P. Barrett

SOLICITORS: Applicant - Justin Lewis & Co Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/51/0036

LOWER COURT JUDICIAL OFFICER: Black DCJ

- 1 - IN THE COURT OF CRIMINAL APPEAL 2006/469

McCLELLAN CJ at CL SULLY J HISLOP J

13 April 2006 Julian Mark SIMPSON v REGINA Judgment

1 McCLELLAN CJ at CL: I agree with Hislop J. 2 SULLY J: I agree with Hislop J.

HISLOP J

Introduction 3 The applicant pleaded guilty to 3 counts that he did on 28 June 2004 supply a prohibited drug contrary to the Drug Misuse and Trafficking Act 1985 ('the Act') s 25. 4 The counts related to cannabis (count 1), methylamphetamine (count 2) and methylenedioxymethylamphetamine (count 3). The drugs were discovered in a unit rented by the applicant during the execution of a warrant by police on 28 June 2004. 5 The maximum penalty is ten years imprisonment or a fine of 2000 penalty units or both (count 1) and 15 years imprisonment or a fine of 2000 penalty units or both (counts 2 and 3 - s 32(1) of the Act). 6 On 11 August 2005 Judge Black QC sentenced the applicant in the District Court in respect of the three counts to imprisonment for a non-parole period of 15 months commencing on 11 August 2005 with the balance of the sentence of 15 months to date from 10 November 2006 and expire on 10 February 2008. 7 The applicant has sought leave to appeal against the sentence. Two grounds were argued on the appeal. Firstly that the circumstances of the case were so exceptional that his Honour must necessarily have erred in imposing a full time custodial sentence or, alternatively, if it had been open to his Honour to impose a custodial sentence, the custodial sentence imposed by his Honour was manifestly excessive.