Citation: Regina v Michael John Fursey [2004] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 23 February 2004
Judges: Ipp JA, Sully J, Adams J
Background
The respondent was sentenced in the Lismore District Court after pleading guilty to two counts of supplying methylamphetamine in a commercial quantity. Each count involved broadly similar amounts of the drug. In connection with the second count, three matters of possessing a prohibited firearm were listed on a Form 1, meaning they were taken into account at sentencing without separate convictions being recorded.
The sentencing judge imposed four years imprisonment with a three-year non-parole period on count one, and a fixed term of two years on count two, ordered to run fully concurrently. Critically, Crown counsel at the sentencing hearing conceded that making the sentences fully concurrent would not constitute appellable error.
The Crown then appealed, arguing the overall sentence was inadequate. The Court of Criminal Appeal was required to assess whether the sentencing judge erred and, if so, whether the earlier Crown concession prevented the appeal from succeeding.
Legal Issues
- Whether the sentence imposed on count two was adequate, given it should have been assessed discretely under the principle in Pearce v The Queen and should have reflected the Form 1 firearm matters
- Whether the decision to run both sentences fully concurrently was correct
- Whether the Crown's concession at the sentencing hearing that full concurrency would not be appellable error precluded it from resiling from that position on appeal
- Whether, accounting for the concession and the principle of double jeopardy on Crown appeals, the margin between the actual and appropriate sentences was sufficient to justify appellate intervention
Decision
Sully J, with whom Ipp JA and Adams J agreed, accepted that the sentence on count two was inadequate when assessed in isolation. Applying Pearce v The Queen, each count required discrete consideration. The second count warranted a sentence broadly comparable to the first, and that sentence then needed to be adjusted upward to give genuine weight to the Form 1 firearm matters. Sully J indicated that a sentence of six years with a non-parole period of four and a half years on count two, with approximately one year of accumulation, would have been more appropriate, yielding a total effective sentence of around seven years.
However, the Crown's concession at first instance that full concurrency would not be appellable error fundamentally altered the analysis. The Court of Criminal Appeal held there was no acceptable basis on which the Crown could resile from that concession on appeal. This reduced the comparison from an overall seven-year sentence to one focused solely on count two: four years (as imposed) against a notional six years.
Once double jeopardy considerations were applied, that gap narrowed further to roughly nine months of additional non-parole time. Sully J concluded that such a narrow margin did not justify appellate intervention. Ipp JA noted that he had initially considered the Crown appeal to have strong prospects, but the concession changed his view entirely.
Orders Made
- Crown appeal dismissed
Key Takeaways
- A Crown concession made at a sentencing hearing that a particular approach would not constitute appellable error can bind the Crown on appeal, removing that ground from the scope of any subsequent challenge.
- Under the High Court's decision in Pearce v The Queen, each count on an indictment must be considered discretely at sentencing, and a sentence on one count should not simply be subsumed within or rendered wholly redundant by a sentence on another.
- Form 1 matters (offences taken into account without separate conviction) must be given genuine weight at sentencing, not nominal acknowledgment, and should result in an identifiable upward adjustment to the relevant sentence.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that the double jeopardy principle applicable to Crown appeals narrows the practical margin between an inadequate sentence and the sentence that would be substituted on appeal.
- A sentence may be considered lenient without being outside the permissible range; only an error placing the sentence outside that range justifies appellate intervention.
Legislation and Cases Referenced
Cases:
- Pearce v The Queen (1998) 194 CLR (High Court authority on discrete sentencing for multiple offences on a single indictment)
Legislation:
- No specific legislation was cited by name in the judgment, though the offences involved prohibited drug supply charges carrying a statutory maximum of 20 years imprisonment under the applicable NSW legislation.