Regina v Elomar [2000] NSWCCA 431

Regina v Elomar [2000] NSWCCA 431

Although it was proper for the Crown to elect to proceed in the District Court given the applicant's criminal history and commission of the offence while on parole, the absence of any reference in the sentencing remarks to the Local Court maximum, together with the relatively small quantity of cannabis and the applicant's admission that he proposed to sell some of it, justified appellate intervention. The minimum term of nine months remained appropriate, but the overall sentence was reduced by varying the additional term to one year and three months.

Jurisdiction
Australia
Judgment Date
21 February 2000
Procedural Posture
Criminal Sentence Appeal Against Severity / Application for Leave to Appeal and Appeal in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal upheld in part; minimum term confirmed; additional term varied.
Legal Topics
['supply of a Prohibited Drug' 'cannabis' 'manifest Excess' 'summary Disposal in the Local Court' 'election to Proceed on Indictment' 'parole as Aggravating Feature']
['criminal Law' 'sentencing' 'drug Offences'] ['supply of a Prohibited Drug' 'cannabis' 'manifest Excess' 'summary Disposal in the Local Court' 'election to Proceed on Indictment' 'parole as Aggravating Feature']

Case Brief

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Procedural Posture

Criminal Sentence Appeal Against Severity / Application for Leave to Appeal and Appeal in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether leave to appeal against sentence should be granted.' 'Whether the sentence for supplying 359.3 grams of cannabis was manifestly excessive.' 'What significance should be given to the fact that the offence could have been dealt with summarily in the Local Court if the prosecuting authority had not elected to proceed on indictment.' 'Whether the minimum term and additional term imposed by the District Court should be disturbed.']

Ratio Decidendi

Although it was proper for the Crown to elect to proceed in the District Court given the applicant's criminal history and commission of the offence while on parole, the absence of any reference in the sentencing remarks to the Local Court maximum, together with the relatively small quantity of cannabis and the applicant's admission that he proposed to sell some of it, justified appellate intervention. The minimum term of nine months remained appropriate, but the overall sentence was reduced by varying the additional term to one year and three months.

Court Disposition

Leave to appeal granted; appeal upheld in part; minimum term confirmed; additional term varied.

Orders

  • ['Leave to appeal granted.' 'Appeal upheld to the extent indicated.' 'Minimum term of 9 months imprisonment commencing on 1 October 1999 and expiring on 30 June 2000 confirmed.' 'Additional term varied to one year and three months imprisonment commencing on 1 July 2000 and expiring on 30 September 2001.']