Budin v Regina [2006] NSWCCA 393

New South Wales Court of Criminal Appeal

CITATION: Budin v Regina [2006] NSWCCA 393

HEARING DATE(S): 8 December 2006

JUDGMENT DATE: 8 December 2006

JUDGMENT OF: McClellan CJ at CL at 16, 18; Simpson J at 1; Hall J at 17

EX TEMPORE JUDGMENT DATE: 12/08/2006

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against severity of sentence - supply of prohibited drug (methylamphetamine) - plea of guilty - special circumstances - subjective circumstances - no error in approach of sentencing judge

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Part 3, Division 3, s44(2) Drug Misuse and Trafficking Act 1985 s25

CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

PARTIES: Neil Robert Budin - Applicant Crown - Respondent

FILE NUMBER(S): CCA 2006/2064

COUNSEL: AP Cook - Applicant D Frearson SC - Respondent

SOLICITORS: SE O'Connor - Applicant S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0288

LOWER COURT JUDICIAL OFFICER: Woods QC DCJ

IN THE COURT OF CRIMINAL APPEAL 2006/2064

McCLELLAN CJ at CL SIMPSON J HALL J

Friday 8 December 2006 Neil Robert BUDIN v REGINA Judgment 1 SIMPSON J: On 20 September 2005 the applicant entered a plea of guilty to a charge on an indictment of taking part in the supply of a prohibited drug (methylamphetamine), in an amount of 102.39 grams. The offence was committed on 15 June 2005. The applicant asked that two further offences, identified on a Form 1, be taken into account pursuant to the procedures provided for by Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). They were one offence of possession of a precursor with the intent that it be used in the manufacture of the prohibited drug, and one offence of possession of a prohibited drug (the drug commonly known as LSD). 2 The charge on the indictment was brought under the provisions of s25 of the Drug Misuse and Trafficking Act 1985, and carries a maximum penalty of imprisonment for 15 years. On 8 December 2005 Woods DCJ sentenced the applicant to imprisonment with a total term of four and a half years, made up of a non-parole period of two years and three months and a balance of term of two years and three months. In order to do so, he found that special circumstances pursuant to s44(2) of the Act existed, justifying departure from the ratio between the non-parole period and the head sentence there stated. The applicant seeks leave to appeal against the sentence.