Brennan v R [2018] NSWCCA 22

Brennan v R [2018] NSWCCA 22

Although s 44(2B) did not require a finding of special circumstances before imposing an aggregate non-parole period greater than 75% of the aggregate head sentence, and Judge Barnett gave short but adequate reasons for doing so, the sentencing discretion miscarried because the substantial upward departure from the 75% ratio was not sought by the Crown, was not foreshadowed by the sentencing judge, and was imposed after the defence had sought special circumstances. In the particular circumstances, the applicant was denied procedural fairness because his representative was not alerted to, and given an opportunity to address, that adverse and unusual outcome.

Jurisdiction
Australia
Judgment Date
23 February 2018
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal Against Sentence in the Court of Criminal Appeal From a Drug Court Sentence
Outcome
Leave to appeal granted; appeal against sentence allowed; aggregate sentence quashed; applicant re-sentenced to an aggregate head sentence of three years six months with an aggregate non-parole period of two years seven months 15 days.
Legal Topics
['aggregate Sentence' 'aggregate Non Parole Period' 'special Circumstances' 'procedural Fairness' 'drug Court Program Failure' 'crimes (sentencing Procedure) Act 1999 (nsw) S 44' 'drug Court Act 1998 (nsw) S 7 A']
['criminal Law' 'sentencing' 'appellate Procedure'] ['aggregate Sentence' 'aggregate Non Parole Period' 'special Circumstances' 'procedural Fairness' 'drug Court Program Failure' 'crimes (sentencing Procedure) Act 1999 (nsw) S 44' 'drug Court Act 1998 (nsw) S 7 A']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal Against Sentence in the Court of Criminal Appeal From a Drug Court Sentence

Legal Issues

  1. 1 ['Whether s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) required the sentencing judge to find special circumstances before imposing an aggregate non-parole period greater than 75% of the aggregate head sentence.' 'Whether the sentencing judge gave adequate reasons for imposing an aggregate non-parole period greater than 75% of the aggregate head sentence.' 'Whether the applicant was denied procedural fairness because neither the Crown nor the sentencing judge foreshadowed an aggregate non-parole period substantially greater than 75% of the aggregate head sentence.' 'What sentence should be imposed on re-sentence.']

Ratio Decidendi

Although s 44(2B) did not require a finding of special circumstances before imposing an aggregate non-parole period greater than 75% of the aggregate head sentence, and Judge Barnett gave short but adequate reasons for doing so, the sentencing discretion miscarried because the substantial upward departure from the 75% ratio was not sought by the Crown, was not foreshadowed by the sentencing judge, and was imposed after the defence had sought special circumstances. In the particular circumstances, the applicant was denied procedural fairness because his representative was not alerted to, and given an opportunity to address, that adverse and unusual outcome.

Court Disposition

Leave to appeal granted; appeal against sentence allowed; aggregate sentence quashed; applicant re-sentenced to an aggregate head sentence of three years six months with an aggregate non-parole period of two years seven months 15 days.

Orders

  • ['Leave to appeal granted.' 'Appeal against sentence allowed.' 'The indicative sentences provided by Judge Barnett in the Drug Court on 9 December 2016 are confirmed.' 'The aggregate sentence imposed by Judge Barnett in the Drug Court on 9 December 2016 is quashed.' 'The applicant is sentenced to an aggregate head...