Regina v De Groot Van Embden [2003] NSWCCA 156

Regina v De Groot Van Embden [2003] NSWCCA 156

The head sentence of twelve years was within the sentencing discretion because the applicant's involvement in the importation was critical from the Australian end, he was authorised to engage assistance and fix the market price, and the objective seriousness of the offence required condign punishment and deterrence. However, by majority, the non-parole period was affected by appellable error because the sentencing judge gave no reasons for fixing it at 66 per cent of the head sentence and did not address significant subjective factors supporting a non-parole period at the lower end of the customary Commonwealth range, including rehabilitation prospects, steps concerning drug and alcohol...

Jurisdiction
Australia
Judgment Date
16 June 2003
Procedural Posture
Criminal Sentencing Appeal Concerning Attempt to Obtain Possession of Prohibited Imports (mdma/ecstasy) / Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Application for leave to appeal granted; head sentence confirmed; by majority the non-parole period was quashed and a non-parole period of seven years fixed.
Legal Topics
['attempt to Obtain Possession of Prohibited Imports' 'commercial Quantity of Mdma/ecstasy' 'manifest Excess' 'non Parole Period for Commonwealth Offence' 'discount for Assistance to Authorities' 'discount for Guilty Plea' 'commonwealth Crimes Act S 16 G Adjustment']
['criminal Law' 'sentencing' 'drug Importation Offences'] ['attempt to Obtain Possession of Prohibited Imports' 'commercial Quantity of Mdma/ecstasy' 'manifest Excess' 'non Parole Period for Commonwealth Offence' 'discount for Assistance to Authorities' 'discount for Guilty Plea' 'commonwealth Crimes Act S 16 G Adjustment']

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Procedural Posture

Criminal Sentencing Appeal Concerning Attempt to Obtain Possession of Prohibited Imports (mdma/ecstasy) / Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the head sentence of twelve years imprisonment was manifestly excessive.' 'Whether the sentencing judge erred in characterising the applicant as the Australian principal of an international organisation.' 'Whether the sentencing judge allowed insufficient benefit for the plea of guilty.' 'Whether the non-parole period of eight years was excessive or affected by error because reasons were not given for fixing it at two-thirds of the head sentence.']

Ratio Decidendi

The head sentence of twelve years was within the sentencing discretion because the applicant's involvement in the importation was critical from the Australian end, he was authorised to engage assistance and fix the market price, and the objective seriousness of the offence required condign punishment and deterrence. However, by majority, the non-parole period was affected by appellable error because the sentencing judge gave no reasons for fixing it at 66 per cent of the head sentence and did not address significant subjective factors supporting a non-parole period at the lower end of the customary Commonwealth range, including rehabilitation prospects, steps concerning drug and alcohol...

Court Disposition

Application for leave to appeal granted; head sentence confirmed; by majority the non-parole period was quashed and a non-parole period of seven years fixed.

Orders

  • ['The application for leave to appeal be granted.' 'The head sentence imposed by his Honour be confirmed.' 'The non-parole period fixed by his Honour be quashed.' 'In lieu thereof there be a non-parole period of seven years to date from 18 January 2000 and to expire on 17 January 2007.']