Carter (a pseudonym) v R [2021] NSWCCA 208

Carter (a pseudonym) v R [2021] NSWCCA 208

A miscarriage of justice occurred as the finding that the offending in count 1 was of mid-range objective seriousness was not reasonably open on the evidence, particularly given the applicant's comparatively limited role, the absence of evidence of sophisticated planning or negotiations, the relative weight and purity of the drugs supplied, and the statutory context. The concession made by counsel was not binding and exceptional circumstances existed to allow the applicant to resile from it. Consequently, error was established and re-sentencing was required, resulting in a reduction of the aggregate sentence.

Parties
Applicant: Carter (a pseudonym); Respondent: Regina
Jurisdiction
Australia
Judgment Date
10 September 2021
Procedural Posture
Criminal Appeal / Appeal Against Sentence; Leave to Appeal Granted
Outcome
Appeal allowed. Sentence quashed. Applicant resentenced.
Legal Topics
Sentencing, Appeal Against Sentence, Drug Supply Offences, Objective Seriousness, Concessions by Counsel, Parity of Sentencing
Criminal Law Sentencing Appeal Against Sentence Drug Supply Offences Objective Seriousness Concessions by Counsel Parity of Sentencing

Case Brief

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Parties

Carter (a pseudonym)

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence; Leave to Appeal Granted

Legal Issues

  1. 1 Whether the sentencing judge erred in assessing the objective seriousness of the offending in Count 1
  2. 2 Whether the applicant should be permitted to resile from a concession made by counsel at first instance regarding objective seriousness
  3. 3 Whether a miscarriage of justice occurred due to the concession

Ratio Decidendi

A miscarriage of justice occurred as the finding that the offending in count 1 was of mid-range objective seriousness was not reasonably open on the evidence, particularly given the applicant's comparatively limited role, the absence of evidence of sophisticated planning or negotiations, the relative weight and purity of the drugs supplied, and the statutory context. The concession made by counsel was not binding and exceptional circumstances existed to allow the applicant to resile from it. Consequently, error was established and re-sentencing was required, resulting in a reduction of the aggregate sentence.

Court Disposition

Appeal allowed. Sentence quashed. Applicant resentenced.

Orders

  • Grant leave to appeal against sentence.
  • Allow the appeal.