HOWARTH v REGINA [2010] NSWCCA 211

HOWARTH v REGINA [2010] NSWCCA 211

The sentences for the drug supply offences and the total effective sentence were not manifestly excessive given the seriousness of the offending, the quantities of drugs, the associated firearms and proceeds of crime offending, and the maximum penalties. However, the judge found special circumstances based on the need for ongoing rehabilitation, which necessarily contemplated community supervision after release. By accumulating the sentences so that the aggregate non-parole period was 4 years with only a 12-month parole period, the judge failed to give effect to that finding. The appeal was therefore allowed in part and the sentence on count 2 was restructured.

Jurisdiction
Australia
Judgment Date
20 September 2010
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed in part; sentence on count 2 set aside and replaced with a non-parole period of 18 months and a balance of term of 18 months.
Legal Topics
['supply of Prohibited Drugs' 'unauthorised Possession of a Pistol' 'dealing With Proceeds of Crime' 'manifest Excess' 'special Circumstances' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['supply of Prohibited Drugs' 'unauthorised Possession of a Pistol' 'dealing With Proceeds of Crime' 'manifest Excess' 'special Circumstances' 'non Parole Period']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentences imposed on the supply prohibited drug offences were manifestly excessive.' 'Whether the aggregate sentence was manifestly excessive.' 'Whether the sentencing judge failed to give effect to a finding of special circumstances.']

Ratio Decidendi

The sentences for the drug supply offences and the total effective sentence were not manifestly excessive given the seriousness of the offending, the quantities of drugs, the associated firearms and proceeds of crime offending, and the maximum penalties. However, the judge found special circumstances based on the need for ongoing rehabilitation, which necessarily contemplated community supervision after release. By accumulating the sentences so that the aggregate non-parole period was 4 years with only a 12-month parole period, the judge failed to give effect to that finding. The appeal was therefore allowed in part and the sentence on count 2 was restructured.

Court Disposition

Leave to appeal granted; appeal allowed in part; sentence on count 2 set aside and replaced with a non-parole period of 18 months and a balance of term of 18 months.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed in part.' 'The sentence imposed on count 2 is set aside. In lieu, a non parole period of 18 months is imposed, to date from 25 August 2010, expiring 24 February 2012, with a balance of term of 18 months, expiring 24 August 2013. The applicant is eligible for release to...