Fabre v R [2018] NSWCCA 133

Fabre v R [2018] NSWCCA 133

The appeal was one as of right under Criminal Appeal Act 1912 (NSW), ss 5AA and 5AF and was properly determined by a single judge. Ground 1 was abandoned and, in any event, the judge had regard to the maximum penalties. Although error was established because the judge may not have allowed a utilitarian guilty plea discount for four indicative sentences, those indicative sentences totalled only 14 months within putative individual sentences totalling 176 months; even assuming a 25% discount, the effect on the 30-month aggregate sentence would be insignificant and could not have materially affected it. No relevant error justified resentencing, and the aggregate sentence was confirmed.

Jurisdiction
Australia
Judgment Date
29 June 2018
Procedural Posture
Appeal Against Sentence Imposed by the Drug Court Exercising the Jurisdiction of the Local Court / Appeal Determined by a Single Judge of the Court of Criminal Appeal
Outcome
Aggregate sentence confirmed and appeal dismissed.
Legal Topics
['appeal From Sentence' 'drug Court Final Sentence' 'aggregate Sentence' 'guilty Plea Discount' 'non Parole Period and Parole Release Direction' 'single Judge Constitution of Court of Criminal Appeal' 'indicative Sentences']
['criminal Law' 'criminal Procedure' 'sentencing'] ['appeal From Sentence' 'drug Court Final Sentence' 'aggregate Sentence' 'guilty Plea Discount' 'non Parole Period and Parole Release Direction' 'single Judge Constitution of Court of Criminal Appeal' 'indicative Sentences']

Case Brief

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Procedural Posture

Appeal Against Sentence Imposed by the Drug Court Exercising the Jurisdiction of the Local Court / Appeal Determined by a Single Judge of the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the appeal from the Drug Court sentence was governed by Criminal Appeal Act 1912 (NSW), ss 5AA and 5AF and could be heard by a single judge without leave.' 'Whether any parole release direction should be made on appeal after the sentencing judge failed to direct release at the end of the non-parole period.' 'Whether the sentencing judge failed to take maximum penalties into account.' 'Whether the sentencing judge erred by failing to allow a discount for the utilitarian value of guilty pleas in four indicative sentences and whether that error could materially affect the aggregate sentence.' 'Whether the indicative sentences or aggregate sentence warranted intervention for manifest excess.']

Ratio Decidendi

The appeal was one as of right under Criminal Appeal Act 1912 (NSW), ss 5AA and 5AF and was properly determined by a single judge. Ground 1 was abandoned and, in any event, the judge had regard to the maximum penalties. Although error was established because the judge may not have allowed a utilitarian guilty plea discount for four indicative sentences, those indicative sentences totalled only 14 months within putative individual sentences totalling 176 months; even assuming a 25% discount, the effect on the 30-month aggregate sentence would be insignificant and could not have materially affected it. No relevant error justified resentencing, and the aggregate sentence was confirmed.

Court Disposition

Aggregate sentence confirmed and appeal dismissed.

Orders

  • ['Confirm the aggregate sentence imposed on the appellant on 8 September 2017 by the Drug Court and dismiss the appeal.']