Noufl v R [2020] NSWCCA 10

Noufl v R [2020] NSWCCA 10

The applicant's parity ground was upheld because, despite broadly similar subjective circumstances, the co-offender's objective criminality was substantially greater: he was the prime mover, supplied far larger quantities including a commercial quantity of ecstasy, committed more supply occasions, and faced a proceeds of crime charge involving over $20,000. The comparatively small difference between the total sentences, particularly the non-parole periods, gave the applicant an objectively justifiable sense of grievance. The erroneous generous backdate did not defeat the parity ground. The original sentences were quashed and lesser sentences totalling two years were imposed, to be served...

Jurisdiction
Australia
Judgment Date
12 February 2020
Procedural Posture
Application for Leave to Appeal Against Sentence and Appeal Against Sentence / Court of Criminal Appeal Determination and Resentencing
Outcome
Leave to appeal granted; appeal against sentence allowed; original sentences quashed; applicant resentenced to imprisonment to be served by intensive correction orders.
Legal Topics
['supply of Prohibited Drugs' 'intensive Correction Orders' 'parity Between Co Offenders' 'erroneous Disparity' 'cumulation and Concurrence' 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Appeals'] ['supply of Prohibited Drugs' 'intensive Correction Orders' 'parity Between Co Offenders' 'erroneous Disparity' 'cumulation and Concurrence' 'manifest Excess']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge found an aggravating factor of personal financial gain contrary to the evidence and without proof beyond reasonable doubt.' 'Whether partial cumulation was unavailable because the two supply offences occurred simultaneously.' "Whether the applicant's subjective features and alternatives to full-time imprisonment were inadequately considered." "Whether the sentence imposed on the applicant demonstrated erroneous disparity when compared with the co-offender's sentence." 'Whether the sentences imposed were manifestly excessive.']

Ratio Decidendi

The applicant's parity ground was upheld because, despite broadly similar subjective circumstances, the co-offender's objective criminality was substantially greater: he was the prime mover, supplied far larger quantities including a commercial quantity of ecstasy, committed more supply occasions, and faced a proceeds of crime charge involving over $20,000. The comparatively small difference between the total sentences, particularly the non-parole periods, gave the applicant an objectively justifiable sense of grievance. The erroneous generous backdate did not defeat the parity ground. The original sentences were quashed and lesser sentences totalling two years were imposed, to be served...

Court Disposition

Leave to appeal granted; appeal against sentence allowed; original sentences quashed; applicant resentenced to imprisonment to be served by intensive correction orders.

Orders

  • ['Leave to appeal granted.' 'Appeal against sentence allowed.' 'The sentences imposed by Judge Maiden SC on 12 July 2018 are quashed.' 'In substitution, on count two the applicant is sentenced to a sentence of imprisonment for one year six months, to commence on 12 February 2020.' 'On count one, the applicant is...