Bidgood v R [2016] NSWCCA 138

Bidgood v R [2016] NSWCCA 138

Error was established because financial gain was wrongly treated as aggravating for the ongoing supply offence, the applicant was wrongly denied the benefit of otherwise good character by reference to the present offending, and the judge used an incorrect maximum penalty for the cannabis supply count. However, on re-sentence the applicant was substantially engaged in drug supply, was more than a street level dealer, had no exceptional circumstances justifying a non-custodial sentence, and the original aggregate sentence was lenient; therefore no lesser sentence was warranted and the appeal was dismissed despite leave being granted.

Jurisdiction
Australia
Judgment Date
15 July 2016
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court of Nsw; Re Sentence Considered by the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['supply Prohibited Drug on an Ongoing Basis' 'cultivate Prohibited Plant Commercial Quantity' 'supply Prohibited Drug' 'aggregate Sentence' 'form 1 Offences' 'aggravating Factors' 'good Character' 'procedural Fairness' 'parity and Co Offenders' 'maximum Penalty Error' 're Sentence']
['criminal Law' 'sentencing' 'drug Offences'] ['supply Prohibited Drug on an Ongoing Basis' 'cultivate Prohibited Plant Commercial Quantity' 'supply Prohibited Drug' 'aggregate Sentence' 'form 1 Offences' 'aggravating Factors' 'good Character' 'procedural Fairness' 'parity and Co Offenders' 'maximum Penalty Error' 're Sentence']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court of Nsw; Re Sentence Considered by the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in finding that the applicant was another offender's up-line supplier." 'Whether the sentencing judge erred in taking into account sentences imposed on offenders connected to the applicant but not true co-offenders.' 'Whether the applicant was denied procedural fairness by not being given an opportunity to address the issue of his knowledge of acts of other offenders.' 'Whether engaging in ongoing supply for financial reward could be treated as an aggravating factor where financial or material reward was an element of the offence.' "Whether the sentencing judge erred in finding that the applicant's otherwise good character did not entitle him to leniency by reference to the present offending." 'Whether the sentencing judge erred by sentencing on the basis of an incorrect maximum penalty for supplying 3.2kg of cannabis.']

Ratio Decidendi

Error was established because financial gain was wrongly treated as aggravating for the ongoing supply offence, the applicant was wrongly denied the benefit of otherwise good character by reference to the present offending, and the judge used an incorrect maximum penalty for the cannabis supply count. However, on re-sentence the applicant was substantially engaged in drug supply, was more than a street level dealer, had no exceptional circumstances justifying a non-custodial sentence, and the original aggregate sentence was lenient; therefore no lesser sentence was warranted and the appeal was dismissed despite leave being granted.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']