Michael v Regina [2011] NSWCCA 122

Michael v Regina [2011] NSWCCA 122

The sentencing judge erred by treating full-time custody as effectively automatic for the applicant's drug supply offence without determining whether the conduct was an isolated act or amounted to substantial trafficking, and by giving no weight to the pre-sentence and psychological reports concerning the applicant's need for psychological assistance. The finding rejecting the applicant's claim of personal drug use was open and did not disclose appellable error. Because sentencing error was established and a lesser sentence was warranted, the original sentence was quashed and the applicant was resentenced.

Jurisdiction
Australia
Judgment Date
06 June 2011
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Appeal allowed; sentence quashed; applicant resentenced.
Legal Topics
['supply of Prohibited Drug' 'deemed Supply' 'sentencing Discretion' 'full Time Custody' 'psychological Evidence' 'manifest Excess']
['criminal Law' 'sentencing'] ['supply of Prohibited Drug' 'deemed Supply' 'sentencing Discretion' 'full Time Custody' 'psychological Evidence' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erroneously fettered the discretion to impose a sentence other than full-time custody for an isolated act of supply.' 'Whether the sentencing judge erred in not accepting that the applicant had become a drug user in the months before his arrest.' "Whether the sentencing judge erred in giving no weight to expert evidence about the applicant's need for continuing psychological assistance." 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge erred by treating full-time custody as effectively automatic for the applicant's drug supply offence without determining whether the conduct was an isolated act or amounted to substantial trafficking, and by giving no weight to the pre-sentence and psychological reports concerning the applicant's need for psychological assistance. The finding rejecting the applicant's claim of personal drug use was open and did not disclose appellable error. Because sentencing error was established and a lesser sentence was warranted, the original sentence was quashed and the applicant was resentenced.

Court Disposition

Appeal allowed; sentence quashed; applicant resentenced.

Orders

  • ['Appeal allowed.' 'Sentence of Finnane DCJ of 11 June 2010 quashed.' 'In lieu, the applicant is sentenced to a non-parole period of 15 months commencing on 10 March 2010 and expiring on 9 June 2011.' 'The applicant is sentenced to a balance of term of 15 months commencing on 10 June 2011 and expiring on 9 September...