Moss v R [2016] NSWCCA 242

Moss v R [2016] NSWCCA 242

The sentencing process miscarried because the sentencing judge's reasons were internally inconsistent on concurrency and accumulation, included an arithmetical error, produced an effective aggregate non-parole period exceeding the statutory ratio without adequate explanation, and failed properly to treat the applicant's good behaviour in custody and rehabilitation evidence. Re-sentencing was required. Having regard to the objective seriousness of dealing with two large amounts of proceeds of crime and supplying methylamphetamine, the importance of general deterrence, the applicant's guilty pleas, absence of prior convictions, remorse, family support, employment prospects, back pain, and...

Jurisdiction
Australia
Judgment Date
04 November 2016
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Re Sentencing by the Court of Criminal Appeal From Sentences Imposed in the District Court on 9 October 2015
Outcome
Leave to appeal against sentence granted; appeal allowed; District Court sentences quashed; applicant re-sentenced.
Legal Topics
['sentence Appeal' 'proceeds of Crime' 'supply of Prohibited Drug' 'non Parole Period' 'totality' 'accumulation and Concurrency' 'general Deterrence' 'special Circumstances' 'foreign National in Custody' 'guilty Plea Discount']
['criminal Law' 'sentencing'] ['sentence Appeal' 'proceeds of Crime' 'supply of Prohibited Drug' 'non Parole Period' 'totality' 'accumulation and Concurrency' 'general Deterrence' 'special Circumstances' 'foreign National in Custody' 'guilty Plea Discount']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Re Sentencing by the Court of Criminal Appeal From Sentences Imposed in the District Court on 9 October 2015

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to consider totality and by partially accumulating the proceeds of crime sentences on the drug supply sentence despite stating they should be entirely concurrent.' 'Whether the sentencing judge made an arithmetical error and imposed an effective aggregate non-parole period exceeding the statutory ratio without adequate explanation or special circumstances.' 'Whether greater weight was given to general deterrence because the applicant was a foreign national and whether onerous custody as a foreign national should have been taken into account.' "Whether the sentencing judge failed properly to take into account the applicant's prior good character, conduct in custody and prospects of rehabilitation." 'What sentences should be imposed on re-sentencing.']

Ratio Decidendi

The sentencing process miscarried because the sentencing judge's reasons were internally inconsistent on concurrency and accumulation, included an arithmetical error, produced an effective aggregate non-parole period exceeding the statutory ratio without adequate explanation, and failed properly to treat the applicant's good behaviour in custody and rehabilitation evidence. Re-sentencing was required. Having regard to the objective seriousness of dealing with two large amounts of proceeds of crime and supplying methylamphetamine, the importance of general deterrence, the applicant's guilty pleas, absence of prior convictions, remorse, family support, employment prospects, back pain, and...

Court Disposition

Leave to appeal against sentence granted; appeal allowed; District Court sentences quashed; applicant re-sentenced.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal allowed and sentences imposed by the District Court on 9 October 2015 quashed.' 'In respect of Count 1 (dealing with proceeds of crime of $330,500), the applicant is sentenced to a non-parole period of 2 years and 3 months commencing on 7 August 2014 and...