Linden v R [2017] NSWCCA 321

Linden v R [2017] NSWCCA 321

The sentencing judge erred by taking into account the Form 1 offence against sequence 3, rather than against sequence 1 as required by s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and as agreed. This error required the Court to resentence the applicant, despite the error being technical and the criminality for each principal offence being similar. Allowing for mitigating factors and the seriousness of the offences, the appropriate sentence was imprisonment for 2 years and 2 months with a non-parole period of 10 months and 28 days, with parole conditions as stated.

Parties
Applicant: Jamie Lynese Linden; Respondent Crown: Regina
Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Sentence Appeal / Leave to Appeal Granted; Appeal Allowed; Resentencing on Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence in District Court quashed; applicant resentenced
Legal Topics
Sentence Appeal, Ongoing Supply of Prohibited Drug, Sentencing Error, Form 1 Offences, Mitigating Factors, Exceptional Hardship
Criminal Law Sentence Appeal Ongoing Supply of Prohibited Drug Sentencing Error Form 1 Offences Mitigating Factors Exceptional Hardship

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Parties

Jamie Lynese Linden

Applicant

Regina

Respondent Crown

Procedural Posture

Sentence Appeal / Leave to Appeal Granted; Appeal Allowed; Resentencing on Appeal

Legal Issues

  1. 1 Whether sentencing judge erred by taking Form 1 offence into account against the wrong principal offence
  2. 2 Whether the error required resentencing of the applicant
  3. 3 Appropriate sentence and mitigation in view of applicant’s background and circumstances

Ratio Decidendi

The sentencing judge erred by taking into account the Form 1 offence against sequence 3, rather than against sequence 1 as required by s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and as agreed. This error required the Court to resentence the applicant, despite the error being technical and the criminality for each principal offence being similar. Allowing for mitigating factors and the seriousness of the offences, the appropriate sentence was imprisonment for 2 years and 2 months with a non-parole period of 10 months and 28 days, with parole conditions as stated.

Court Disposition

Leave to appeal granted; appeal allowed; sentence in District Court quashed; applicant resentenced

Orders

  • Leave to appeal granted and appeal allowed.
  • Sentence imposed in the District Court on 18 January 2017 quashed.