HANTZIS v THE QUEEN [2006] NSWCCA 387

HANTZIS v THE QUEEN [2006] NSWCCA 387

The sentencing judge erred by imposing only one sentence when the applicant stood to be sentenced for two offences, and the starting point of 12 years for the cultivation charge was too high having regard to the objective criminality, the applicant's subjective circumstances, the Form 1 supply offence, and comparable authorities. An appropriate undiscounted sentence for the cultivation charge was eight years, reduced to six years for the guilty plea. The Court had power under a purposive construction of s 7(1A) of the Criminal Appeal Act 1912 (NSW) to deal with the unsentenced second charge; because its criminality completely overlapped with the cultivation charge, a concurrent fixed term...

Jurisdiction
Australia
Judgment Date
04 December 2006
Procedural Posture
Application for Leave to Appeal Against Sentence and Appeal Against Sentence / New South Wales Court of Criminal Appeal; Extension of Time, Leave to Appeal, Appeal Allowed and Resentencing
Outcome
Extension of time granted; leave to appeal granted; appeal allowed; original sentence set aside; applicant resentenced.
Legal Topics
['cultivation of Commercial Quantity of Cannabis Plants' 'supply of Commercial Quantity of Cannabis Leaf' 'failure to Sentence Separately for Each Offence' 'manifest Excess' 'court of Criminal Appeal Power to Deal With Outstanding Charge' 'form 1 Offence']
['criminal Law' 'sentencing' 'criminal Appeals' 'drug Offences'] ['cultivation of Commercial Quantity of Cannabis Plants' 'supply of Commercial Quantity of Cannabis Leaf' 'failure to Sentence Separately for Each Offence' 'manifest Excess' 'court of Criminal Appeal Power to Deal With Outstanding Charge' 'form 1 Offence']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence and Appeal Against Sentence / New South Wales Court of Criminal Appeal; Extension of Time, Leave to Appeal, Appeal Allowed and Resentencing

Legal Issues

  1. 1 ['Whether the sentence for the first charge was manifestly excessive.' 'Whether the sentencing judge failed to sentence separately for each offence, and if so, whether the Court of Criminal Appeal had power to deal with the outstanding second charge.']

Ratio Decidendi

The sentencing judge erred by imposing only one sentence when the applicant stood to be sentenced for two offences, and the starting point of 12 years for the cultivation charge was too high having regard to the objective criminality, the applicant's subjective circumstances, the Form 1 supply offence, and comparable authorities. An appropriate undiscounted sentence for the cultivation charge was eight years, reduced to six years for the guilty plea. The Court had power under a purposive construction of s 7(1A) of the Criminal Appeal Act 1912 (NSW) to deal with the unsentenced second charge; because its criminality completely overlapped with the cultivation charge, a concurrent fixed term...

Court Disposition

Extension of time granted; leave to appeal granted; appeal allowed; original sentence set aside; applicant resentenced.

Orders

  • ['Extend time within which the application for leave to appeal might be filed up to and including 2 June 2006.' 'Grant leave to appeal against the sentence imposed by the District Court on 10 June 2005 in relation to the first charge of cultivating a commercial quantity of cannabis plants.' 'Allow the appeal and set...