LB v R [2013] NSWCCA 70

LB v R [2013] NSWCCA 70

Error was established because the sentence did not comply with s 23(4): the remarks did not state with precision the reduction allowed for past and future assistance, so a future appeal under s 5DA of the Criminal Appeal Act 1912 could not identify the discount for future assistance. On re-sentence, the assistance was substantial but not exceptional; there was no evidence of harsher custodial conditions; a global discount of 40 per cent, comprising 25 per cent for the guilty plea and 15 per cent for assistance, was appropriate. Any lesser total head sentence than 10 years 2 months would be unreasonably disproportionate to the serious drug manufacturing offences.

Jurisdiction
Australia
Judgment Date
05 April 2013
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentences Imposed in the District Court of New South Wales After Guilty Pleas
Outcome
Leave to appeal against sentence granted; appeal allowed; both sentences quashed; applicant re-sentenced to a total head sentence of 10 years 2 months with a total non-parole period of 6 years 10 months dating from 19 September 2010.
Legal Topics
['sentence Appeal' 'assistance to Authorities' 'discount for Guilty Plea' 'drug Manufacture' 'section 23 Crimes (sentencing Procedure) Act 1999' 'parity With Co Offenders' 'special Circumstances']
['criminal Law' 'sentencing' 'drug Offences'] ['sentence Appeal' 'assistance to Authorities' 'discount for Guilty Plea' 'drug Manufacture' 'section 23 Crimes (sentencing Procedure) Act 1999' 'parity With Co Offenders' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentences Imposed in the District Court of New South Wales After Guilty Pleas

Legal Issues

  1. 1 ["Whether the sentencing judge gave an insufficient discount for the applicant's plea of guilty and assistance to authorities." 'Whether the sentences complied with s 23(4) of the Crimes (Sentencing Procedure) Act 1999 by identifying the reductions for past and future assistance.' "Whether, after error was established, a lesser sentence was warranted in law and what discount should be allowed for the applicant's assistance." 'Whether a sentence below the proposed total head sentence would be unreasonably disproportionate under s 23(3) of the Crimes (Sentencing Procedure) Act 1999.']

Ratio Decidendi

Error was established because the sentence did not comply with s 23(4): the remarks did not state with precision the reduction allowed for past and future assistance, so a future appeal under s 5DA of the Criminal Appeal Act 1912 could not identify the discount for future assistance. On re-sentence, the assistance was substantial but not exceptional; there was no evidence of harsher custodial conditions; a global discount of 40 per cent, comprising 25 per cent for the guilty plea and 15 per cent for assistance, was appropriate. Any lesser total head sentence than 10 years 2 months would be unreasonably disproportionate to the serious drug manufacturing offences.

Court Disposition

Leave to appeal against sentence granted; appeal allowed; both sentences quashed; applicant re-sentenced to a total head sentence of 10 years 2 months with a total non-parole period of 6 years 10 months dating from 19 September 2010.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal against sentence allowed.' 'Both sentences are quashed.' 'With regard to count two of knowingly taking part in the manufacture of not less than a large commercial quantity of methylamphetamine, the Court imposes a non-parole period of imprisonment for 2 years 7...