McKellar v R [2010] NSWCCA 295

McKellar v R [2010] NSWCCA 295

The sentences imposed were manifestly excessive due to excessive accumulation and inadequate consideration of the totality principle. The commercial supply offence and the indictable quantity offence were part of the same ongoing operation; lesser accumulation should have been ordered. The maximum penalty error was not significant enough to warrant intervention, and the judge was entitled to reject certain statements in the psychological report where inconsistent with agreed facts.

Jurisdiction
Australia
Judgment Date
17 December 2010
Procedural Posture
Criminal Appeal / Court of Criminal Appeal—application for Leave to Appeal Against Sentence
Outcome
Appeal allowed; application for leave to appeal granted; sentences varied.
Legal Topics
['commercial Supply of Prohibited Drug' 'appeal Against Severity of Sentence' 'totality Principle' 'manifest Excess' 'objective Seriousness of Offence' 'maximum Penalty Errors']
['criminal Law'] ['commercial Supply of Prohibited Drug' 'appeal Against Severity of Sentence' 'totality Principle' 'manifest Excess' 'objective Seriousness of Offence' 'maximum Penalty Errors']

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal—application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['whether sentencing judge erred regarding maximum penalty for supply offence' 'whether sentencing judge erred in assessment of evidence from psychological report' 'whether sentences imposed were manifestly excessive due to totality principle']

Ratio Decidendi

The sentences imposed were manifestly excessive due to excessive accumulation and inadequate consideration of the totality principle. The commercial supply offence and the indictable quantity offence were part of the same ongoing operation; lesser accumulation should have been ordered. The maximum penalty error was not significant enough to warrant intervention, and the judge was entitled to reject certain statements in the psychological report where inconsistent with agreed facts.

Court Disposition

Appeal allowed; application for leave to appeal granted; sentences varied.

Orders

  • ['Application for leave to appeal granted.' 'Appeal allowed.' 'The sentence for supply prohibited drug (26 September 2008): imprisonment for 18 months from 26 February 2010 to 25 August 2011 is confirmed.' 'The sentence for supplying not less than the commercial quantity of a prohibited drug (23 April 2008–2...