Scott v R [2010] NSWCCA 103

Scott v R [2010] NSWCCA 103

The sentencing judge erred in principle by treating full-time custody as required for a drug supply offence without expressly considering, and without the evidence compelling a conclusion, that the applicant was substantially involved in the supply of prohibited drugs. That error entitled the Court to resentence the applicant, although the failure to find special circumstances was within the sentencing discretion.

Jurisdiction
Australia
Judgment Date
25 May 2010
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; sentence on the indictment quashed; applicant resentenced to a shorter term of imprisonment with release on parole directed at the end of the non-parole period.
Legal Topics
['supply of Prohibited Drug' 'manifestly Excessive Sentence' 'special Circumstances' 'full Time Custody' 'general Deterrence' 'resentencing']
['criminal Law' 'sentencing' 'drug Offences'] ['supply of Prohibited Drug' 'manifestly Excessive Sentence' 'special Circumstances' 'full Time Custody' 'general Deterrence' 'resentencing']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentence imposed for supplying methylamphetamine was manifestly excessive.' 'Whether the sentencing judge erred in failing to find special circumstances.' 'Whether the sentencing judge erroneously fettered the discretion to impose a sentence other than full-time custody by treating full-time custody as required without finding substantial involvement in drug supply.']

Ratio Decidendi

The sentencing judge erred in principle by treating full-time custody as required for a drug supply offence without expressly considering, and without the evidence compelling a conclusion, that the applicant was substantially involved in the supply of prohibited drugs. That error entitled the Court to resentence the applicant, although the failure to find special circumstances was within the sentencing discretion.

Court Disposition

Leave to appeal granted; sentence on the indictment quashed; applicant resentenced to a shorter term of imprisonment with release on parole directed at the end of the non-parole period.

Orders

  • ['Grant leave to appeal.' 'Quash the sentence on the indictment.' 'In lieu thereof sentence the applicant to imprisonment for a non parole period of one year three months commencing on 4 May 2009 and expiring on 3 August 2010 with a balance of term of five months expiring on 3 January 2011.' 'Direct the release of...