Garner v R [2009] NSWCCA 79

Garner v R [2009] NSWCCA 79

The sentencing judge erred by misstating the applicant's evidence about the timing and extent of income from his scrap metal business and by using that misstated evidence, together with an inadequately supported rejection of drug-use funding as a motive, to find that the offences were motivated by sheer greed. That finding was treated as an aggravating factor. Having regard to the quantity in offence 2, the relatively minor additional offences, the erroneous aggravating finding, the plea and assistance discount, and comparative sentencing material, the sentence for offence 2 was manifestly excessive. It was not the case that no less severe aggregate sentence was warranted for all...

Jurisdiction
Australia
Judgment Date
05 May 2009
Procedural Posture
Application for Leave to Appeal Against Sentence; Appeal Against Sentence / Court of Criminal Appeal From Sentences Imposed in the District Court After Guilty Pleas
Outcome
Leave to appeal against the sentence for offence 2 granted; appeal allowed; sentence for offence 2 quashed; applicant resentenced to a non-parole period of one year four months and a balance of term of one year four months.
Legal Topics
['drug Offences' 'supply of Prohibited Drug' 'possession of Unregistered Firearm' 'manifest Excess' 'motive as Aggravating Factor' 'form 1 Offences' 'totality' 'guilty Plea and Assistance Discount' 'special Circumstances']
['criminal Law' 'sentencing'] ['drug Offences' 'supply of Prohibited Drug' 'possession of Unregistered Firearm' 'manifest Excess' 'motive as Aggravating Factor' 'form 1 Offences' 'totality' 'guilty Plea and Assistance Discount' 'special Circumstances']

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Procedural Posture

Application for Leave to Appeal Against Sentence; Appeal Against Sentence / Court of Criminal Appeal From Sentences Imposed in the District Court After Guilty Pleas

Legal Issues

  1. 1 ["Whether the sentencing judge erred in finding that the applicant's motive or reason for the offences was sheer greed." 'Whether the sentence imposed for offence 2 was manifestly excessive.' 'Whether a less severe aggregate sentence was warranted to reflect the total criminality in all offences.']

Ratio Decidendi

The sentencing judge erred by misstating the applicant's evidence about the timing and extent of income from his scrap metal business and by using that misstated evidence, together with an inadequately supported rejection of drug-use funding as a motive, to find that the offences were motivated by sheer greed. That finding was treated as an aggravating factor. Having regard to the quantity in offence 2, the relatively minor additional offences, the erroneous aggravating finding, the plea and assistance discount, and comparative sentencing material, the sentence for offence 2 was manifestly excessive. It was not the case that no less severe aggregate sentence was warranted for all...

Court Disposition

Leave to appeal against the sentence for offence 2 granted; appeal allowed; sentence for offence 2 quashed; applicant resentenced to a non-parole period of one year four months and a balance of term of one year four months.

Orders

  • ['Leave granted to appeal against the sentence for offence 2.' 'Appeal against the sentence for offence 2 allowed.' 'Sentence imposed by the sentencing judge for offence 2 quashed.' 'In lieu thereof sentence the applicant to a non-parole period of one year four months commencing on 29 August 2008 and expiring on 28...