Sinkovich v R [2014] NSWCCA 97

Sinkovich v R [2014] NSWCCA 97

The sentencing judge's approach to count 2 gave too much weight to the standard non-parole period by treating it in accordance with the pre-Muldrock approach in R v Way. Although the offence was slightly above mid-range in objective seriousness and deterrence was important, the standard non-parole period was only a guidepost and not determinative. Given the appellant's insignificant prior record, reasonable prospects of rehabilitation, first custodial sentence, and the maintained finding of special circumstances, a lesser sentence for count 2 was warranted.

Jurisdiction
Australia
Judgment Date
27 May 2014
Procedural Posture
Criminal Appeal Against Sentence Following Referral Pursuant to Part 7 of the Crimes (appeal and Review) Act 2001 (nsw) / Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Appeal allowed; sentence on count 1 maintained; sentence on count 2 quashed and a lesser sentence imposed.
Legal Topics
['appeal Against Sentence' 'standard Non Parole Period' 'muldrock Error' 'commercial Supply of Methylamphetamine' 're Sentencing' 'special Circumstances']
['criminal Law' 'sentencing' 'drug Offences'] ['appeal Against Sentence' 'standard Non Parole Period' 'muldrock Error' 'commercial Supply of Methylamphetamine' 're Sentencing' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence Following Referral Pursuant to Part 7 of the Crimes (appeal and Review) Act 2001 (nsw) / Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in applying the standard non-parole period legislation to count 2 in light of Muldrock v The Queen (2011) 244 CLR 120.' 'Whether, despite the error, a lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912 (NSW).' 'What sentence should be imposed for count 2 on re-sentencing.']

Ratio Decidendi

The sentencing judge's approach to count 2 gave too much weight to the standard non-parole period by treating it in accordance with the pre-Muldrock approach in R v Way. Although the offence was slightly above mid-range in objective seriousness and deterrence was important, the standard non-parole period was only a guidepost and not determinative. Given the appellant's insignificant prior record, reasonable prospects of rehabilitation, first custodial sentence, and the maintained finding of special circumstances, a lesser sentence for count 2 was warranted.

Court Disposition

Appeal allowed; sentence on count 1 maintained; sentence on count 2 quashed and a lesser sentence imposed.

Orders

  • ['Allow the appeal.' 'In respect of the sentences imposed in the District Court on 6 November 2009 maintain that which was imposed for count 1 but quash that which was imposed for count 2.' 'In lieu, sentence the appellant in respect of count 2 to imprisonment comprising a non-parole period of 7 years and 6 months...