Buttrose, Richard William v R [2011] NSWCCA 35

Buttrose, Richard William v R [2011] NSWCCA 35

The sentencing judge erred in assessing the objective seriousness of count 3 as well above mid-range and in partially accumulating the sentences for counts 2 and 3, given that they were part of a single possession and enterprise. The judge also erred in finding the aggravating factor of organised criminal activity. Having regard to the applicant's circumstances, the appropriate sentence for count 3 is a non-parole period of 9 years with a 3-year balance of term, with sentences for counts 2 and 3 to be wholly concurrent. The total revised sentence is 12 years and 6 months with a non-parole period of 9 years and 6 months.

Parties
Appellant: Richard William Buttrose; Respondent: The Crown
Jurisdiction
Australia
Judgment Date
10 March 2011
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal allowed, sentence quashed and applicant resentenced
Legal Topics
Sentencing, Drug Offences, Appeal Against Sentence, Objective Criminality, Accumulation of Sentence, Discount for Plea and Assistance, Organised Criminal Activity
Criminal Law Sentencing Drug Offences Appeal Against Sentence Objective Criminality Accumulation of Sentence Discount for Plea and Assistance Organised Criminal Activity

Case Brief

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Parties

Richard William Buttrose

Appellant

The Crown

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentencing judge erred in the assessment of objective criminality for count 3
  2. 2 Whether sentences on counts 2 and 3 should have been concurrent or partially accumulative
  3. 3 Whether subjective circumstances of the applicant were given insufficient weight

Ratio Decidendi

The sentencing judge erred in assessing the objective seriousness of count 3 as well above mid-range and in partially accumulating the sentences for counts 2 and 3, given that they were part of a single possession and enterprise. The judge also erred in finding the aggravating factor of organised criminal activity. Having regard to the applicant's circumstances, the appropriate sentence for count 3 is a non-parole period of 9 years with a 3-year balance of term, with sentences for counts 2 and 3 to be wholly concurrent. The total revised sentence is 12 years and 6 months with a non-parole period of 9 years and 6 months.

Court Disposition

Appeal allowed, sentence quashed and applicant resentenced

Orders

  • Sentences imposed in the District Court quashed except the order under s 167 of the Criminal Procedure Act 1986.
  • Count 1: 12 months imprisonment from 26 February 2009 to 25 February 2010.