McKibben v R [2007] NSWCCA 89

McKibben v R [2007] NSWCCA 89

The sentencing judge erred by failing to give proper weight to the utilitarian value of the applicant's early guilty pleas and reducing the discount below the expected range without adequate reasons. While the sentences were heavy, they were justified on objective gravity and history. Adjustment for parity and correct discount warrants reduction in sentence.

Parties
Applicant: Carmel McKibben; Respondent: Regina
Jurisdiction
Australia
Judgment Date
02 April 2007
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Application for leave to appeal is granted. Appeal is allowed. Sentences are quashed and applicant re-sentenced.
Legal Topics
Sentencing, Drug Offences, Parity, Totality, Manifestly Excessive Sentence, Discount for Guilty Plea
Criminal Law Sentencing Drug Offences Parity Totality Manifestly Excessive Sentence Discount for Guilty Plea

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Parties

Carmel McKibben

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentencing judge failed to properly apply the principle of parity to the 2003 offence
  2. 2 Whether the sentencing judge failed to properly apply the principle of totality
  3. 3 Whether the sentencing judge over-estimated the objective gravity of the offences

Ratio Decidendi

The sentencing judge erred by failing to give proper weight to the utilitarian value of the applicant's early guilty pleas and reducing the discount below the expected range without adequate reasons. While the sentences were heavy, they were justified on objective gravity and history. Adjustment for parity and correct discount warrants reduction in sentence.

Court Disposition

Application for leave to appeal is granted. Appeal is allowed. Sentences are quashed and applicant re-sentenced.

Orders

  • For manufacture offence (including Form 1): non-parole period of 2 years 3 months from 10 June 2005 to 9 September 2007; balance of 2 years 3 months from 10 September 2007.
  • Count 1 (s 25A, including Form 1): non-parole period of 2 years 9 months from 10 March 2007 to 10 December 2009; balance of 1 year 9 months from 9 December 2009.