Regina v Farah [2005] NSWCCA 67

Regina v Farah [2005] NSWCCA 67

Although Sides DCJ was entitled to reject the submission that totality prevented any further non-parole period beyond that set by Moore ADCJ, and was entitled to distinguish the criminality of the offences, the sentencing judge did not give sufficient effect to the totality principle in light of Moore ADCJ's sentence for related drug offending committed in the same short period. The punitive Criminal Assets Recovery Act order also had to be taken into account. Considering all objective and subjective matters, the sentences should be quashed and re-imposed with the same terms but with commencement back-dated by twelve months.

Jurisdiction
Australia
Judgment Date
01 March 2005
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted. Appeal allowed. Sentences imposed by Sides DCJ quashed. Applicant re-sentenced.
Legal Topics
['supplying Prohibited Drugs on an Ongoing Basis' 'drug Supply' 'manifest Excess' 'guilty Plea Discount' 'medical Condition in Sentencing' 'prospects of Rehabilitation' 'totality Principle' 'criminal Assets Recovery Act Penalty']
['criminal Law' 'sentencing'] ['supplying Prohibited Drugs on an Ongoing Basis' 'drug Supply' 'manifest Excess' 'guilty Plea Discount' 'medical Condition in Sentencing' 'prospects of Rehabilitation' 'totality Principle' 'criminal Assets Recovery Act Penalty']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentences imposed by Sides DCJ were manifestly excessive after taking into account the sentence imposed by Moore ADCJ.' "Whether the sentencing judge erred in failing to allow a sufficient reduction for the applicant's pleas of guilty." "Whether the sentencing judge erred in failing to make an allowance in reduction of sentence for the applicant's medical condition." 'Whether the sentencing judge erred in failing to make a finding that the applicant had favourable prospects of rehabilitation.' 'Whether the sentencing judge had sufficient regard to the principle of totality.' 'Whether the sentencing judge had sufficient regard to the punishment already suffered from an order made under the Criminal Assets Recovery Act.']

Ratio Decidendi

Although Sides DCJ was entitled to reject the submission that totality prevented any further non-parole period beyond that set by Moore ADCJ, and was entitled to distinguish the criminality of the offences, the sentencing judge did not give sufficient effect to the totality principle in light of Moore ADCJ's sentence for related drug offending committed in the same short period. The punitive Criminal Assets Recovery Act order also had to be taken into account. Considering all objective and subjective matters, the sentences should be quashed and re-imposed with the same terms but with commencement back-dated by twelve months.

Court Disposition

Leave to appeal granted. Appeal allowed. Sentences imposed by Sides DCJ quashed. Applicant re-sentenced.

Orders

  • ['Leave to appeal granted.' 'Appeal against sentences allowed.' 'Sentences imposed by Sides DCJ quashed.' 'On count 1, a sentence of imprisonment for five years six months to commence on 23 May 2004, with a non-parole period of two years six months to commence on 23 May 2004 and to expire on 22 November 2006.' 'On...