R v Salcedo [2004] NSWCCA 430

R v Salcedo [2004] NSWCCA 430

The final sentence was not shown to be excessive. The difference between the applicant's sentence and Moustapha's sentence was, at most, a mere rather than marked disparity because the sentencing judge treated the differences as marginal and based the reduction for Moustapha on subjective matters. The parity principle was therefore not offended. The sentencing judge had considered protective custody at the original sentencing and was not required to revisit every aspect of sentence when resentencing solely to reflect the corrected quantity of ecstasy. The application for leave was granted, but the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
02 December 2004
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence
Outcome
Application for leave to appeal against sentence granted; substantive appeal dismissed.
Legal Topics
['importation of Trafficable Quantity of Ecstasy' 'passport Offence' 'parity Principle' 'protective Custody' 'severity Appeal']
['criminal Law' 'sentencing' 'criminal Appeals'] ['importation of Trafficable Quantity of Ecstasy' 'passport Offence' 'parity Principle' 'protective Custody' 'severity Appeal']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred by imposing a greater sentence on the applicant than on his co-accused, giving rise to a justifiable sense of grievance.' 'Whether the sentencing judge overlooked or gave insufficient weight to time served and to be served in protective custody.' 'Whether the final sentence imposed for importing 169.9 grams of ecstasy was excessive.']

Ratio Decidendi

The final sentence was not shown to be excessive. The difference between the applicant's sentence and Moustapha's sentence was, at most, a mere rather than marked disparity because the sentencing judge treated the differences as marginal and based the reduction for Moustapha on subjective matters. The parity principle was therefore not offended. The sentencing judge had considered protective custody at the original sentencing and was not required to revisit every aspect of sentence when resentencing solely to reflect the corrected quantity of ecstasy. The application for leave was granted, but the appeal was dismissed.

Court Disposition

Application for leave to appeal against sentence granted; substantive appeal dismissed.

Orders

  • ['Grant the application for leave to appeal against sentence.' 'Dismiss the substantive appeal.']