Robertson v R [2017] NSWCCA 205

Robertson v R [2017] NSWCCA 205

The appeal had to be allowed because the Form 1 included a purported offence against s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) based on possession of a substance that was not a restricted substance, so that matter should not have been taken into account. The sentencing judge also erred by treating previous authority concerning drug trafficking to a substantial degree as effectively precluding an intensive correction order and by failing to give that realistic sentencing option full consideration. On resentencing, although an intensive correction order would otherwise have been appropriate, the applicant had already served a little over 4 months of the 10 month minimum...

Jurisdiction
Australia
Judgment Date
23 August 2017
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Resentencing in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to a fixed term of 12 months imprisonment commencing 11 August 2017, wholly suspended on condition of a 12 month good behaviour bond.
Legal Topics
['appeal Against Sentence' 'form 1 Offences' 'supply of Prohibited Drugs' 'intensive Correction Orders' 'suspended Sentences' 'judicial Sentencing Discretion' 'substantial Drug Trafficking']
['criminal Law' 'sentencing' 'drug Offences'] ['appeal Against Sentence' 'form 1 Offences' 'supply of Prohibited Drugs' 'intensive Correction Orders' 'suspended Sentences' 'judicial Sentencing Discretion' 'substantial Drug Trafficking']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Resentencing in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether an erroneous Form 1 that included an offence not known to law required the sentence to be quashed and the applicant resentenced.' 'Whether the sentencing judge erred by treating the line of authority concerning drug trafficking to a substantial degree as precluding, absent exceptional circumstances, full consideration of an intensive correction order.' 'Whether an intensive correction order was an available sentencing option for offences of supplying prohibited drugs found to involve trafficking to a substantial degree.' "What sentence should be imposed on resentencing having regard to the applicant's offences, personal circumstances, rehabilitation and time already served."]

Ratio Decidendi

The appeal had to be allowed because the Form 1 included a purported offence against s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) based on possession of a substance that was not a restricted substance, so that matter should not have been taken into account. The sentencing judge also erred by treating previous authority concerning drug trafficking to a substantial degree as effectively precluding an intensive correction order and by failing to give that realistic sentencing option full consideration. On resentencing, although an intensive correction order would otherwise have been appropriate, the applicant had already served a little over 4 months of the 10 month minimum...

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to a fixed term of 12 months imprisonment commencing 11 August 2017, wholly suspended on condition of a 12 month good behaviour bond.

Orders

  • ['Grant leave to appeal against sentence.' 'Appeal allowed. Sentence quashed.' 'In lieu thereof sentence the applicant to imprisonment for a fixed term of 12 months commencing today (11 August 2017).' 'Order pursuant to section 12(1) of the Crimes (Sentencing Procedure) Act 1999 that execution of the whole of the...