R v Barlow [2010] NSWCCA 215

R v Barlow [2010] NSWCCA 215

The sentencing judge committed a conceded structural error by back-dating a sentence that was otherwise to be served by way of periodic detention, requiring the sentence to be quashed and restructured. However, apart from that error, the Crown did not establish discrete error or manifest inadequacy: the judge was entitled to find the offence below the middle range of objective seriousness, to distinguish the respondent's conduct from profit-driven drug dealing, to give weight to his youth, remorse, lack of record, rehabilitation, assistance, disclosure of otherwise unknown offending and parental support, and to consider the parents' reporting of his conduct as relevant to sentencing...

Jurisdiction
Australia
Judgment Date
22 September 2010
Procedural Posture
Crown Appeal Against Sentence in Criminal Proceedings / Appeal to the New South Wales Court of Criminal Appeal From Sentence Imposed in the District Court
Outcome
Appeal allowed in part; sentence imposed on 23 April 2010 quashed; respondent resentenced by way of periodic detention.
Legal Topics
['supply of Commercial Quantity of Prohibited Drug' 'crown Appeal Against Sentence' 'standard Non Parole Period' 'objective Seriousness' 'subjective Circumstances' 'periodic Detention' 'assistance to Authorities' 'disclosure of Unknown Offences' 'parental Reporting of Offending']
['criminal Law' 'sentencing'] ['supply of Commercial Quantity of Prohibited Drug' 'crown Appeal Against Sentence' 'standard Non Parole Period' 'objective Seriousness' 'subjective Circumstances' 'periodic Detention' 'assistance to Authorities' 'disclosure of Unknown Offences' 'parental Reporting of Offending']

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Procedural Posture

Crown Appeal Against Sentence in Criminal Proceedings / Appeal to the New South Wales Court of Criminal Appeal From Sentence Imposed in the District Court

Legal Issues

  1. 1 ["Whether the sentencing judge failed to give proper weight to the objective seriousness of the offence and gave excessive weight to the respondent's subjective features." 'Whether the sentencing judge erred in finding that the offence was not committed for financial gain in the conventional sense.' 'Whether the sentencing judge erred in back-dating a sentence to be served by way of periodic detention.' "Whether the sentencing judge erred in taking into account a need not to deter parents from reporting their children's conduct to authorities." 'Whether the sentencing judge failed adequately to determine objective seriousness, failed to justify departure from the standard non-parole period, or failed to pay sufficient regard to the standard non-parole period.' 'Whether the sentence was manifestly inadequate.']

Ratio Decidendi

The sentencing judge committed a conceded structural error by back-dating a sentence that was otherwise to be served by way of periodic detention, requiring the sentence to be quashed and restructured. However, apart from that error, the Crown did not establish discrete error or manifest inadequacy: the judge was entitled to find the offence below the middle range of objective seriousness, to distinguish the respondent's conduct from profit-driven drug dealing, to give weight to his youth, remorse, lack of record, rehabilitation, assistance, disclosure of otherwise unknown offending and parental support, and to consider the parents' reporting of his conduct as relevant to sentencing...

Court Disposition

Appeal allowed in part; sentence imposed on 23 April 2010 quashed; respondent resentenced by way of periodic detention.

Orders

  • ['Appeal allowed in part.' 'Sentence imposed on 23 April 2010 quashed.' 'In lieu, sentenced to a non-parole period of 13 months 2 weeks to date from 8 May 2010 and expire 21 June 2011, with a balance of term of 15 months to date from 22 June 2011 and expire 21 September 2012, to be served by way of periodic...