John VISSER v R; John VISSER v R [2011] NSWCCA 146

John VISSER v R; John VISSER v R [2011] NSWCCA 146

The pleas were not entered at the earliest practicable time, particularly given the applicant's escape and delay of the proceedings, and the 12.5% discount was within the sentencing judge's discretion. The concurrency of counts 2, 3 and 4 and partial cumulation of count 1 were proper because count 1 was a separate actual supply on a different day, while the escape sentence had to be cumulative. Parity was not infringed because Harris was a purchaser with different culpability, criminal history, assistance and hardship considerations. The overall sentence was within range and not tainted by error or plainly unjust.

Jurisdiction
Australia
Judgment Date
24 June 2011
Procedural Posture
Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal Appeal From Sentence Imposed by Freeman DCJ on 19 March 2010 at Sydney District Court
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['discount for Plea of Guilty' 'timeliness of Guilty Plea After Escape and Re Arrest' 'parity in Sentencing' 'concurrency and Cumulation of Sentences' 'drug Supply Offences' 'escape From Lawful Custody' 'manifest Excess']
['criminal Law' 'sentencing'] ['discount for Plea of Guilty' 'timeliness of Guilty Plea After Escape and Re Arrest' 'parity in Sentencing' 'concurrency and Cumulation of Sentences' 'drug Supply Offences' 'escape From Lawful Custody' 'manifest Excess']

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Procedural Posture

Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal Appeal From Sentence Imposed by Freeman DCJ on 19 March 2010 at Sydney District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred by allowing a 12.5% discount for the guilty pleas rather than 25%.' 'Whether the sentencing judge failed to fix appropriate sentences for each offence and erred in orders for concurrence or cumulation contrary to Pearce v The Queen (1998) 194 CLR 610.' "Whether there was unjustified disparity between the applicant's sentence on count 1 and the sentence imposed on Harris." 'Whether the overall sentence was manifestly excessive.']

Ratio Decidendi

The pleas were not entered at the earliest practicable time, particularly given the applicant's escape and delay of the proceedings, and the 12.5% discount was within the sentencing judge's discretion. The concurrency of counts 2, 3 and 4 and partial cumulation of count 1 were proper because count 1 was a separate actual supply on a different day, while the escape sentence had to be cumulative. Parity was not infringed because Harris was a purchaser with different culpability, criminal history, assistance and hardship considerations. The overall sentence was within range and not tainted by error or plainly unjust.

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

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