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Supreme Court 28 February 2005

Regina v Walsh and Little

[2005] NSWSC 125

DrugsFraud & dishonestyTheft & propertyFirearms & weapons
CRIMINAL LAW

Citation: Regina v Walsh and Little [2005] NSWSC 125
Court: Supreme Court of New South Wales
Date: 28 February 2005
Judge(s): Howie J

Background

Two offenders, Walsh and Little, came before the Supreme Court for sentencing after pleading guilty to a range of serious offences. Both were implicated in the supply and manufacture of methylamphetamine in quantities not less than the large commercial quantity, spanning a period from 1997 to 2001. Both also faced separate charges involving the unlicensed possession of firearms, prohibited weapons, and ammunition.

Walsh faced additional charges of dishonesty, including an aggravated break and enter with intent to steal an ATM and the theft of a commercial prime mover and trailer. Little's offending centred primarily on manufacturing methylamphetamine and supplying the product he manufactured, with the firearms offences arising separately upon his arrest.

Each offender pleaded guilty, and the sentencing proceedings were protracted due to scheduling difficulties and the need to consolidate outstanding District Court matters. The sentencing judge noted this extended period of uncertainty and took it into account in favour of both offenders.

  • Whether life imprisonment should be imposed for supply and manufacture of methylamphetamine in a large commercial quantity under the Drug Misuse and Trafficking Act 1985
  • How to structure sentences across multiple, related and unrelated offences, including questions of concurrency and cumulation
  • Whether the offence of supply, which arose from the same conduct as the manufacture offence for Little, required a separate or concurrent sentence
  • How to apply the Pearce v The Queen principle to offences that share closely related criminality but have no overlapping elements

Decision

Howie J declined to impose life imprisonment on either offender. The sentencing remarks indicate the court accepted that, while the offences attracted a maximum penalty of life imprisonment under sections 24(2) and 25(2) of the Drug Misuse and Trafficking Act 1985, such a sentence was not warranted on the facts before it.

For Walsh, the court imposed a substantial term of imprisonment to reflect the gravity of the drug supply offence, the dishonesty offences, and the weapons offences. Various counts were addressed using concurrent and, where appropriate, cumulative sentences, with form 1 matters taken into account in the usual way.

For Little, Howie J sentenced him to 22 years imprisonment commencing 24 September 2001 for the manufacture offence, with a non-parole period of 16 years and six months expiring on 23 March 2018. An additional sentence on the supply count was imposed concurrently, on identical terms, because the manufacturing and supply offences were regarded as part and parcel of the same criminality.

The court added supplementary remarks on 16 March 2005 after identifying an oversight: Little had not initially been sentenced on the supply count. Applying Pearce v The Queen, Howie J determined that although the two offences had no overlapping elements in a technical sense, the supply was committed in direct furtherance of the manufacture and the same sentence should apply to both.

Orders Made

  • Walsh: convicted and sentenced on charges of supplying methylamphetamine (large commercial quantity), aggravated break and enter, theft of a motor vehicle, and multiple firearms and weapons possession offences, with form 1 matters taken into account
  • Little: sentenced to 22 years imprisonment from 24 September 2001 for manufacturing methylamphetamine (large commercial quantity), non-parole period of 16 years and six months expiring 23 March 2018
  • Little: sentenced concurrently to 22 years imprisonment from 24 September 2001 for supplying methylamphetamine (large commercial quantity), with the identical non-parole period
  • Little: convicted and sentenced on two firearms possession counts and one prohibited weapon possession count

Key Takeaways

  • Life imprisonment is the statutory maximum for commercial drug supply and manufacture offences under the Drug Misuse and Trafficking Act 1985, but the Supreme Court found it was not appropriate on these facts, resulting in a lengthy but finite term.
  • Where manufacturing and supply offences arise from precisely the same course of criminal conduct, a concurrent sentence on identical terms may be appropriate, even where the offences have no overlapping technical elements under Pearce v The Queen.
  • Under Pearce v The Queen (1998) 194 CLR 610, the court must consider whether offences share overlapping elements before imposing concurrent sentences, but closely related criminality can also justify concurrency on a broader discretionary basis.
  • A sentencing court retains the ability to remedy an oversight and impose a sentence on a charge inadvertently omitted from the original sentencing remarks, provided the matter remains properly before the court.
  • Protracted delays in sentencing proceedings, even where adjournments are consented to, are a factor the court will take into account in favour of an offender given the extended period of uncertainty they create.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
- Firearms Act 1996 (NSW), ss 7(1), 62(1)(b)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes Act 1900 (NSW), ss 113(2), 154AA(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 61(2)

Cases:
- R v Kalache [2000] NSWCCA 2
- R v McMillan [2005] NSWCCA 28
- R v Folbigg [2005] NSWCCA 23
- Johnson v The Queen (2004) 205 ALR 346
- Pearce v The Queen (1998) 194 CLR 610