Thomas v R [2019] NSWCCA 88

Thomas v R [2019] NSWCCA 88

The agreed facts did not support characterising the applicant as a middleman or assessing the offence as just at the mid-range of objective seriousness. His proven involvement was delivery of the bag to the co-accused with knowledge that it contained many bags of cocaine. Although the quantity and purity were significant, the objective seriousness was below the mid-range. The remorse ground failed because there was no evidence before the sentencing judge that the applicant accepted responsibility for his offending conduct. Specific sentencing error required re-sentencing.

Jurisdiction
Australia
Judgment Date
29 April 2019
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence; Appeal Allowed and Applicant Re Sentenced
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; applicant re-sentenced to a lesser term of imprisonment.
Legal Topics
['supply of a Commercial Quantity of Cocaine' 'objective Seriousness' 'remorse' 'guilty Plea Discount' 're Sentencing']
['criminal Law' 'sentencing'] ['supply of a Commercial Quantity of Cocaine' 'objective Seriousness' 'remorse' 'guilty Plea Discount' 're Sentencing']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence; Appeal Allowed and Applicant Re Sentenced

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective criminality of the offence as just at the mid-range of objective seriousness.' "Whether the sentencing judge erred in finding that the applicant's remorse could not be taken into account pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)." 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The agreed facts did not support characterising the applicant as a middleman or assessing the offence as just at the mid-range of objective seriousness. His proven involvement was delivery of the bag to the co-accused with knowledge that it contained many bags of cocaine. Although the quantity and purity were significant, the objective seriousness was below the mid-range. The remorse ground failed because there was no evidence before the sentencing judge that the applicant accepted responsibility for his offending conduct. Specific sentencing error required re-sentencing.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; applicant re-sentenced to a lesser term of imprisonment.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The sentence imposed in the District Court of New South Wales on 25 May 2018 is quashed.' 'The applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years 2 months commencing on 22 December 2016 and expiring on 21 February 2020, with...