Leigh Brown v R [2014] NSWCCA 335

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Leigh Brown v R [2014] NSWCCA 335 Hearing dates: 6 November 2014 Decision date: 23 December 2014 Before: Beazley P at [1] Hidden J at [2] RS Hulme AJ at [33] Decision: Leave to appeal granted, appeal allowed, sentence passed in the District Court quashed, in lieu, applicant sentenced to an aggregate term of 6 years, commencing on 31 August 2012 and expiring on 30 August 2018, with a non-parole period of 2 ½ years, commencing on 31 August 2012 and expiring on 28 February 2015. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - aggregate sentence for various offences - offender with long history of drug abuse commencing as a child - defeated addiction - good prospects of rehabilitation Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Category: Principal judgment Parties: Leigh Brown (applicant) Regina (Crown) Representation: Counsel: H White (applicant) P Ingram SC (Crown) Solicitors: John Krajcik (applicant) J Pheils - Solicitor for Public Prosecutions File Number(s): 2012/27388 Decision under appeal Date of Decision: 2013-09-19 00:00:00 Before: Colefax DCJ File Number(s): 2012/27388

Judgment 1BEAZLEY P: I have had the advantage of reading in draft the reasons of Hidden J. I agree with his Honour's reasons and the orders he proposes. 2HIDDEN J: The applicant, Leigh Raymond Brown, pleaded guilty in the District Court to the following counts: 1. Aggravated break, enter and commit a serious indictable offence (knowing there was a person present), an offence under s 112(2) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years; 2. Supplying a prohibited drug (17.3 grams of methylamphetamine), an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of 15 years imprisonment. 3In respect of each count the applicant asked the sentencing judge to take into account on sentence matters on a Form 1. In relation to the first count, these were offences of larceny of a car trailer and receiving stolen property (a Holden vehicle). In respect of the second count, these were offences of possessing a prohibited drug (1.96 grams of amphetamine) and possessing a prescribed restricted substance (anabolic steroid - testosterone/deca). In addition, he was dealt with for a number of related offences under s 166 of the Criminal Procedure Act 1986. These were two offences of stealing a motor vehicle and two offences of possessing a shortened firearm. 4After allowing a 25% discount of sentence in recognition of the pleas of guilty, the sentencing judge imposed an aggregate sentence of imprisonment for 7 years with a non-parole period of 4 years and 3 months, dating from the day of his arrest, 31 August 2012. The indicative sentences for the principal offences, discounted for the pleas of guilty, were as follows: Count 1 (Aggravated break and enter), taking into account the matters on the Form 1 - 4 years and 10 months with a non-parole period of 3 years and 8 months; Count 2 (Supplying prohibited drug), taking into account the matters on the Form 1 - 3 years and 4 months. 5In respect of the matters dealt with under s 166 of the Criminal Procedure Act, again after discount, the indicative sentences were: Stealing the Holden R8 - 2 years and 3 months; Stealing the Holden Commodore - 1 year and 6 months; Each of the charges of possessing shortened firearms - 1 year and 6 months. 6His Honour noted that, if he had not passed an aggregate sentence, he would have imposed concurrent sentences on the two firearms offences but those sentences would have been partly accumulated upon the other sentences, for which there would themselves have been some partial accumulation.