Regina v Michael John Fursey [2004] NSWCCA 44

Regina v Michael John Fursey [2004] NSWCCA 44

Although the sentence on count 2 should, applying Pearce and allowing for the Form 1 matters, have been substantially higher and although some accumulation may otherwise have been justified, the Crown had conceded at first instance that full concurrence would not be appellable error. Once that concession and the constraints on Crown sentence appeals, including double jeopardy, were taken into account, the practical margin between the imposed non-parole period and any permissible increase was too narrow to justify intervention.

Jurisdiction
Australia
Judgment Date
23 February 2004
Procedural Posture
Crown Appeal Against Sentence / Appeal From Sentences Imposed by Ducker ADCJ in the Lismore District Court
Outcome
Crown appeal dismissed.
Legal Topics
['crown Appeal Against Sentence' 'supply of Prohibited Drug' 'methylamphetamine' 'commercial Quantity' 'form 1 Matters' 'possession of Prohibited Firearm' 'concurrency and Accumulation of Sentences' 'double Jeopardy']
['criminal Law' 'sentencing'] ['crown Appeal Against Sentence' 'supply of Prohibited Drug' 'methylamphetamine' 'commercial Quantity' 'form 1 Matters' 'possession of Prohibited Firearm' 'concurrency and Accumulation of Sentences' 'double Jeopardy']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence / Appeal From Sentences Imposed by Ducker ADCJ in the Lismore District Court

Legal Issues

  1. 1 ['Whether the sentences imposed for two counts of supplying a prohibited drug in not less than the commercial quantity were appellably lenient.' 'Whether count 2 should have been sentenced discretely and increased to reflect Form 1 firearm matters.' 'Whether the Crown could resile on appeal from its first instance concession that fully concurrent sentences would not involve appellable error.' 'Whether the constraints on Crown sentence appeals, including double jeopardy, justified appellate intervention.']

Ratio Decidendi

Although the sentence on count 2 should, applying Pearce and allowing for the Form 1 matters, have been substantially higher and although some accumulation may otherwise have been justified, the Crown had conceded at first instance that full concurrence would not be appellable error. Once that concession and the constraints on Crown sentence appeals, including double jeopardy, were taken into account, the practical margin between the imposed non-parole period and any permissible increase was too narrow to justify intervention.

Court Disposition

Crown appeal dismissed.

Orders

  • ['The appeal is dismissed.']