Ohanian v R [2017] NSWCCA 268

Ohanian v R [2017] NSWCCA 268

The sentencing judge erred by diminishing the mitigating significance of the applicant's dysfunctional childhood because of his maturity and opportunity to address his difficulties, an approach contrary to Bugmy v The Queen. On re-sentencing, giving full weight to the applicant's deprived background and mental health issues while also accounting for the seriousness of the drug supply offence, Form 1 matters, parole breach, prior record, deterrence and denunciation, a lesser custodial sentence was warranted.

Jurisdiction
Australia
Judgment Date
21 November 2017
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal upheld; sentence quashed; applicant re-sentenced to a lesser sentence.
Legal Topics
['supply of Prohibited Drug' 'dysfunctional Childhood as Mitigating Factor' 'early Exposure to Illegal Drug Use' 'manifest Excess' 're Sentencing' 'parole Breach' 'special Circumstances']
['criminal Law' 'sentencing'] ['supply of Prohibited Drug' 'dysfunctional Childhood as Mitigating Factor' 'early Exposure to Illegal Drug Use' 'manifest Excess' 're Sentencing' 'parole Breach' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred by concluding that the mitigating force of the applicant's dysfunctional upbringing was diminished because he was a mature man who had ample opportunity to address his difficulties." 'Whether the sentence imposed was manifestly excessive.' 'Whether a different, less severe sentence was warranted on re-sentencing.']

Ratio Decidendi

The sentencing judge erred by diminishing the mitigating significance of the applicant's dysfunctional childhood because of his maturity and opportunity to address his difficulties, an approach contrary to Bugmy v The Queen. On re-sentencing, giving full weight to the applicant's deprived background and mental health issues while also accounting for the seriousness of the drug supply offence, Form 1 matters, parole breach, prior record, deterrence and denunciation, a lesser custodial sentence was warranted.

Court Disposition

Leave to appeal granted; appeal upheld; sentence quashed; applicant re-sentenced to a lesser sentence.

Orders

  • ['Leave to appeal granted.' 'Appeal upheld.' 'Sentence imposed on 24 March 2017 quashed.' 'In lieu thereof, the applicant is sentenced to a non-parole period of two years commencing 10 January 2016 and expiring 9 January 2018 with a balance of term of one year and nine months commencing 10 January 2018 and expiring...