N v R; AP v R [2009] NSWCCA 108

N v R; AP v R [2009] NSWCCA 108

The starting points of 14 years imprisonment for NN and 13 years imprisonment for AP were manifestly excessive having regard to the applicants' relatively low roles, favourable subjective circumstances, guilty pleas and assistance to authorities, and the post-repeal sentencing pattern for comparable Commonwealth drug offences. The asserted specific errors concerning NN's financial motivation and AP's factual findings were not established, and the limited differentiation between NN and AP was open, but the excessive starting points required appellate intervention and resentencing.

Jurisdiction
Australia
Judgment Date
17 April 2009
Procedural Posture
Criminal Sentence Appeal / Applications for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted for both applicants; appeals allowed; District Court sentences quashed; applicants resentenced to shorter terms of imprisonment with specified non-parole periods.
Legal Topics
['possession of Marketable Quantity of Cocaine Unlawfully Imported' 'aiding and Abetting Importation of Marketable Quantity of Cocaine' 'pleas of Guilty' 'assistance to Authorities' 'manifestly Excessive Sentence' 'parity' "repeal of S 16 G of the Crimes Act 1914 (c'th)"]
['criminal Law' 'sentencing'] ['possession of Marketable Quantity of Cocaine Unlawfully Imported' 'aiding and Abetting Importation of Marketable Quantity of Cocaine' 'pleas of Guilty' 'assistance to Authorities' 'manifestly Excessive Sentence' 'parity' "repeal of S 16 G of the Crimes Act 1914 (c'th)"]

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether factual findings made by the sentencing judge were open on the evidence.' 'Whether the sentences imposed on NN and AP were manifestly excessive.' 'Whether NN was left with a justifiable sense of grievance by the more lenient sentence imposed on AP.' 'What sentences should be imposed on resentencing after allowing for guilty pleas and assistance to authorities.']

Ratio Decidendi

The starting points of 14 years imprisonment for NN and 13 years imprisonment for AP were manifestly excessive having regard to the applicants' relatively low roles, favourable subjective circumstances, guilty pleas and assistance to authorities, and the post-repeal sentencing pattern for comparable Commonwealth drug offences. The asserted specific errors concerning NN's financial motivation and AP's factual findings were not established, and the limited differentiation between NN and AP was open, but the excessive starting points required appellate intervention and resentencing.

Court Disposition

Leave to appeal granted for both applicants; appeals allowed; District Court sentences quashed; applicants resentenced to shorter terms of imprisonment with specified non-parole periods.

Orders

  • ['Applicant NN: Grant leave to appeal.' 'Applicant NN: Allow the appeal.' 'Applicant NN: Quash the sentence imposed in the District Court.' 'Applicant NN: In substitution sentence the applicant to imprisonment for 6 years 6 months to commence on 21 May 2007 and to expire on 20 November 2013, with a non-parole period...