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Supreme Court 11 March 2004

Regina v Jasper

[2004] NSWSC 155

Drugs
CRIMINAL LAW SENTENCING SUPPLY HEROIN

Citation: Regina v Jasper [2004] NSWSC 155
Court: Supreme Court of New South Wales (Common Law Division)
Date: 11 March 2004
Judge(s): Dunford J

Background

The prisoner, Matthew John Jasper, was a co-offender of David Phillip Patison. Together, they agreed with a drug trafficker named Vincent Caccamo that, in exchange for payments of $1,000 per week, they would stand aside and allow Caccamo to continue supplying heroin. The bribes were paid from the proceeds of Caccamo's heroin dealings.

In April 2003, Dunford J sentenced the prisoner across multiple counts arising from this same conduct. Those sentences totalled 7 years with non-parole periods totalling 5 years. At that point, however, two counts from the original October 2002 indictment had been quashed by Dunford J himself on a pre-trial ruling.

The Court of Criminal Appeal subsequently reversed the ruling quashing those two counts. The prisoner was then arraigned on a fresh indictment covering those counts, pleaded not guilty to supply of a large commercial quantity of heroin, but guilty to the lesser alternative count of supply heroin. The Crown accepted that plea, and the matter returned to Dunford J for sentencing.

  • Whether the prisoner should be sentenced again for conduct that formed part of the same criminal activity for which he had already been sentenced in April 2003
  • How to apply the principle against double punishment where the current offence involved the same underlying conduct as earlier offences
  • How to maintain parity with the co-offender Patison, whose sentences the Court of Criminal Appeal had confirmed were within the proper range
  • How to apply the totality principle so that the overall sentence remained just

Decision

Dunford J acknowledged that the supply heroin offence carried a maximum penalty of 15 years, more serious in that respect than the most serious offence dealt with in the April 2003 sentences (soliciting a corrupt reward, which carries a maximum of 7 years). Despite that disparity, the court identified a fundamental constraint: the prisoner had already been sentenced for the same criminal activity, and should not be punished twice for the same illegal conduct.

The Crown argued that the current charge contained an additional element, namely the actual supply of heroin, not present in the earlier corruption matters. Dunford J rejected that distinction, finding that both the earlier offences and the current charge involved facilitating Caccamo's heroin supply in return for bribes. The conduct was, in substance, the same.

Applying the principles of totality and parity, Dunford J determined that the appropriate sentence was one greater than any individual sentence previously imposed on the prisoner for the Caccamo-related matters, and equal to the sentence Patison had received for the identical offence. Critically, the sentence was to run concurrently with the earlier sentences so that the overall period of imprisonment was not extended.

Orders Made

  • The prisoner was sentenced to imprisonment for 5 years, commencing 27 February 2005 and expiring 26 February 2010
  • A non-parole period of 3 years was fixed, expiring 26 February 2008
  • The sentence was ordered to run concurrently with the sentences imposed on 11 April 2003
  • The earliest date of eligibility for parole was set at 26 February 2008

Key Takeaways

  • A prisoner must not be punished twice for the same criminal conduct: where a fresh charge arises from the same underlying activity already the subject of sentencing, the sentencing court must give substantial weight to that prior punishment.
  • The distinction between facilitating drug supply (through corruption) and directly supplying drugs will not automatically justify treating the two sets of offences as wholly separate for sentencing purposes, where the factual conduct is in substance the same.
  • Parity with a co-offender whose sentence has been upheld on appeal is a significant constraint on the sentence available for the remaining offender.
  • Concurrent sentences, rather than additional cumulative terms, can be the appropriate mechanism for giving effect to the totality principle where new charges arise from already-punished conduct.
  • Under s 32(1)(c) of the Drug Misuse and Trafficking Act 1985, supply heroin (not at large commercial quantity) carries a maximum penalty of 15 years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 249B (soliciting corrupt reward)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 procedure)
- Drug Misuse and Trafficking Act 1985 (NSW), s 32

Cases:
- R v Jasper [2003] NSWSC 285 (Dunford J, ruling quashing two counts)
- R v Jasper [2003] NSWSC 287 (Dunford J, original sentencing remarks)
- R v Jasper [2003] NSWCCA 186 (Court of Criminal Appeal, reversing the quashing of two counts)
- R v Patison [2002] NSWSC 1248 (sentencing of co-offender)
- R v Patison [2003] NSWCCA 171 (Crown appeal against Patison's sentences dismissed)