Nunez v R [2023] NSWCCA 136

Nunez v R [2023] NSWCCA 136

The sentencing judge was aware of evidence that Covid-19 restrictions had prevented in-person family contact, but did not identify that issue in the part of the remarks dealing with the formulation of sentence. Given the applicant's significant subjective circumstances, including his close relationship with his children and mental health issues, the Court inferred that the issue had been overlooked and that this constituted sentencing error. On re-sentence, the later evidence of severe pandemic-related custodial conditions warranted a lesser aggregate non-parole period, while the same aggregate head sentence and indicative sentences were otherwise appropriate.

Jurisdiction
Australia
Judgment Date
14 June 2023
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court Following Guilty Pleas in the Local Court
Outcome
Leave to appeal granted; appeal allowed; original sentence quashed; applicant re-sentenced to the same aggregate head sentence with a reduced aggregate non-parole period.
Legal Topics
['appeal Against Sentence' 'drug Supply Offences' 'impact of Covid 19 Pandemic on Custodial Conditions' 'special Circumstances' 'non Parole Period' 'form 1 Offences']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'drug Supply Offences' 'impact of Covid 19 Pandemic on Custodial Conditions' 'special Circumstances' 'non Parole Period' 'form 1 Offences']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court Following Guilty Pleas in the Local Court

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to have regard to the impact of the Covid-19 pandemic upon the applicant's conditions of imprisonment." "Whether the applicant's submission about potential future Covid-19 outbreaks and access to rehabilitation programs required allowance in the sentence." 'Whether, if error was established, a lesser sentence was warranted on re-sentence.']

Ratio Decidendi

The sentencing judge was aware of evidence that Covid-19 restrictions had prevented in-person family contact, but did not identify that issue in the part of the remarks dealing with the formulation of sentence. Given the applicant's significant subjective circumstances, including his close relationship with his children and mental health issues, the Court inferred that the issue had been overlooked and that this constituted sentencing error. On re-sentence, the later evidence of severe pandemic-related custodial conditions warranted a lesser aggregate non-parole period, while the same aggregate head sentence and indicative sentences were otherwise appropriate.

Court Disposition

Leave to appeal granted; appeal allowed; original sentence quashed; applicant re-sentenced to the same aggregate head sentence with a reduced aggregate non-parole period.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Quash the sentence imposed by Townsden DCJ on 27 November 2020.' 'Resentence the applicant to an aggregate sentence of 7 years and 9 months, backdated to commence on 31 January 2020 and to expire on 30 October 2027, with an aggregate non-parole period of 4 years, to...