SF v R [2022] NSWCCA 216

SF v R [2022] NSWCCA 216

The sentencing judge indicated during the sentence hearing that the impact of Covid-19 on prison conditions would be taken into account, but the remarks on sentence referred to Covid-19 only in connection with delay and did not address the applicant's likely conditions of imprisonment. Because the sentence was delivered two months after the hearing and the identified bases for special circumstances did not include Covid-19 prison conditions, the Court could not safely infer that the factor had been taken into account. That error required resentencing. The parity ground failed because the applicant's role in the manufacture of 24kg of MDA was materially more serious than Mr Washington's...

Jurisdiction
Australia
Judgment Date
07 October 2022
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the NSW Court of Criminal Appeal From Sentences Imposed in the District Court
Outcome
Application for leave to appeal granted; appeal allowed; sentence quashed and applicant resentenced to an aggregate term of imprisonment of 7 years with a non-parole period of 4 years 2 months.
Legal Topics
['appeal Against Sentence' 'covid 19 and Onerous Prison Conditions' 'parity Between Co Offenders' 'special Circumstances' 'drug Manufacture' 'participation in a Criminal Group' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'covid 19 and Onerous Prison Conditions' 'parity Between Co Offenders' 'special Circumstances' 'drug Manufacture' 'participation in a Criminal Group' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the NSW Court of Criminal Appeal From Sentences Imposed in the District Court

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to take into account that the Covid-19 pandemic made the applicant's conditions of imprisonment more onerous." 'Whether the sentence imposed on the applicant for the drug manufacturing offence was disparate from the sentence imposed on co-offender Derrick Washington so as to give rise to a justifiable sense of grievance.' 'What sentence should be imposed on resentencing, including the appropriate non-parole period and the effect of special circumstances.']

Ratio Decidendi

The sentencing judge indicated during the sentence hearing that the impact of Covid-19 on prison conditions would be taken into account, but the remarks on sentence referred to Covid-19 only in connection with delay and did not address the applicant's likely conditions of imprisonment. Because the sentence was delivered two months after the hearing and the identified bases for special circumstances did not include Covid-19 prison conditions, the Court could not safely infer that the factor had been taken into account. That error required resentencing. The parity ground failed because the applicant's role in the manufacture of 24kg of MDA was materially more serious than Mr Washington's...

Court Disposition

Application for leave to appeal granted; appeal allowed; sentence quashed and applicant resentenced to an aggregate term of imprisonment of 7 years with a non-parole period of 4 years 2 months.

Orders

  • ['Application for leave to appeal granted.' 'Appeal allowed.' 'Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 7 years backdated to commence on 29 January 2019 and expiring on 28 January 2026, with a non-parole period of 4 years 2...