He v R [2016] NSWCCA 220

He v R [2016] NSWCCA 220

Leave to appeal was granted and the appeal allowed because the sentencing judge erred by taking likely deportation into account so as to deny the applicant any parole or equivalent conditional release, and by failing to give effect to the finding of special circumstances for the possession offence. Those errors required the Court to re-exercise the sentencing discretion. On re-sentencing, partial accumulation was appropriate because the offences were distinct but related, involving the same substance, a temporal connection, a common motive, and a person apparently involved in both offences. The appropriate overall sentence was 3 years with a minimum custodial component of 2 years,...

Jurisdiction
Australia
Judgment Date
07 October 2016
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal; Appeal Allowed and Applicant Re Sentenced
Outcome
Leave to appeal granted; appeal allowed; District Court sentences quashed; applicant re-sentenced.
Legal Topics
['appeal Against Sentence' 'importation of Ephedrine' 'possession of Prohibited Drug' 'deportation and Parole or Recognizance' 'special Circumstances' 'totality Principle' 'manifest Excess']
['criminal Law' 'sentencing' 'drug Offences'] ['appeal Against Sentence' 'importation of Ephedrine' 'possession of Prohibited Drug' 'deportation and Parole or Recognizance' 'special Circumstances' 'totality Principle' 'manifest Excess']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal; Appeal Allowed and Applicant Re Sentenced

Legal Issues

  1. 1 ['Whether the sentencing judge erred by giving weight to the likely deportation of the applicant so as to deny him a period of parole or equivalent.' 'Whether the sentencing judge erred by failing to give effect to a finding of special circumstances for the possession offence.' 'Whether the sentencing judge erred in applying the totality principle to the two sentences.' 'Whether the overall sentence was manifestly excessive.' 'What sentences should be imposed on re-sentencing.']

Ratio Decidendi

Leave to appeal was granted and the appeal allowed because the sentencing judge erred by taking likely deportation into account so as to deny the applicant any parole or equivalent conditional release, and by failing to give effect to the finding of special circumstances for the possession offence. Those errors required the Court to re-exercise the sentencing discretion. On re-sentencing, partial accumulation was appropriate because the offences were distinct but related, involving the same substance, a temporal connection, a common motive, and a person apparently involved in both offences. The appropriate overall sentence was 3 years with a minimum custodial component of 2 years,...

Court Disposition

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

Orders

  • ['Leave to appeal granted and appeal allowed.' 'Sentences imposed in the District Court on 14 September 2015 quashed.' 'Possess prohibited drug: sentenced to imprisonment for a fixed term of 12 months dating from 15 July 2014 and expiring on 14 July 2015.' 'Import tier 1 good without approval: sentence to...