AB v R [2013] NSWCCA 160

AB v R [2013] NSWCCA 160

The sentencing judge erred in applying undue significance to the standard non-parole period—a two-stage approach contrary to Muldrock. Financial reward is a typical feature, not an aggravating factor, of commercial drug supply. Upon re-exercising the sentencing discretion, a lesser sentence for the commercial supply count is warranted based on the criminality present. The sentence for count 2 should be quashed and replaced, and the commencement date of the subsequent sentence varied to account for the correct temporal sequence.

Jurisdiction
Australia
Judgment Date
05 July 2013
Procedural Posture
Criminal Appeal / Judgment on Leave to Appeal and Resentencing
Outcome
Leave to appeal granted, appeal allowed, sentence on count 2 quashed and substituted, consequential variation of subsequent sentence commencement date, order for immediate parole release.
Legal Topics
['appeal Against Sentence' 'commercial Drug Supply' 'dealing With Proceeds of Crime' 'application of Standard Non Parole Period' 'totality Principle in Sentencing']
['criminal Law'] ['appeal Against Sentence' 'commercial Drug Supply' 'dealing With Proceeds of Crime' 'application of Standard Non Parole Period' 'totality Principle in Sentencing']

Case Brief

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Procedural Posture

Criminal Appeal / Judgment on Leave to Appeal and Resentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred in applying the standard non-parole period for the offence of commercial supply of prohibited drugs' 'Whether financial reward was an aggravating feature or an inherent characteristic of the offence' 'Whether consideration of the overall sentence and other non-appealed sentences affected the sentence appealed from']

Ratio Decidendi

The sentencing judge erred in applying undue significance to the standard non-parole period—a two-stage approach contrary to Muldrock. Financial reward is a typical feature, not an aggravating factor, of commercial drug supply. Upon re-exercising the sentencing discretion, a lesser sentence for the commercial supply count is warranted based on the criminality present. The sentence for count 2 should be quashed and replaced, and the commencement date of the subsequent sentence varied to account for the correct temporal sequence.

Court Disposition

Leave to appeal granted, appeal allowed, sentence on count 2 quashed and substituted, consequential variation of subsequent sentence commencement date, order for immediate parole release.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Quash the sentence in relation to count 2 and substitute: imprisonment with non-parole period of 4 years and 3 months from 1 July 2008 (to 31 October 2012) and balance of term of 2 years and 3 months.' 'Vary the sentence imposed on 24 February 2012 to commence on 1...