Newman (a pseudonym) v R [2019] NSWCCA 157

Newman (a pseudonym) v R [2019] NSWCCA 157

The sentencing judge erred in finding that the applicant had been dishonest about never previously using growth hormones because there was no evidence that the prior conviction involved human growth hormone or that the applicant had used it. In light of the respondent's concession, the Court resentenced the applicant. The majority imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), taking into account the seriousness of the commercial drug supply offending, the Form 1 matters, the applicant's guilty pleas and assistance, favourable findings as to remorse and rehabilitation, health issues, and special circumstances.

Jurisdiction
Australia
Judgment Date
17 July 2019
Procedural Posture
Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed and Applicant Resentenced
Outcome
Extension of time granted; leave to appeal granted; appeal allowed; District Court sentence set aside; applicant resentenced to an aggregate sentence of 6½ years with a non-parole period of 4 years commencing on 19 September 2015.
Legal Topics
['appeal Against Sentence' 'resentencing' 'drug Supply' 'aggregate Sentence' 'remorse' 'special Circumstances' 'non Publication Orders']
['criminal Law' 'sentencing' 'drug Offences'] ['appeal Against Sentence' 'resentencing' 'drug Supply' 'aggregate Sentence' 'remorse' 'special Circumstances' 'non Publication Orders']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed and Applicant Resentenced

Legal Issues

  1. 1 ['Whether the sentencing judge erred in concluding that the applicant had dishonestly told a psychologist that he had never previously used growth hormones.' 'Whether the conceded error required the Court of Criminal Appeal to exercise the sentencing discretion afresh.' 'What sentence should be imposed for multiple drug supply offences, including whether to impose an aggregate sentence and whether special circumstances existed.']

Ratio Decidendi

The sentencing judge erred in finding that the applicant had been dishonest about never previously using growth hormones because there was no evidence that the prior conviction involved human growth hormone or that the applicant had used it. In light of the respondent's concession, the Court resentenced the applicant. The majority imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), taking into account the seriousness of the commercial drug supply offending, the Form 1 matters, the applicant's guilty pleas and assistance, favourable findings as to remorse and rehabilitation, health issues, and special circumstances.

Court Disposition

Extension of time granted; leave to appeal granted; appeal allowed; District Court sentence set aside; applicant resentenced to an aggregate sentence of 6½ years with a non-parole period of 4 years commencing on 19 September 2015.

Orders

  • ['Grant the applicant an extension of time until 21 December 2018 to file his application for leave to appeal the sentence imposed by the District Court on 23 November 2015.' 'Grant the applicant leave to appeal.' 'Allow the appeal and set aside the sentence imposed in the District Court.' 'Resentence the offender...