BOWDEN v REGINA [2009] NSWCCA 45

BOWDEN v REGINA [2009] NSWCCA 45

The sentence for Count 2 could not stand because the sentencing judge erred in treating the applicant as having culpability comparable to her co-offender despite findings that the co-offender had the greater and more dominant role and that the applicant was pressured and influenced by him in a violent domestic relationship. The judge also erred by relying on an unsupported finding that the applicant derived financial gain, by treating financial gain as an aggravating factor when it was an element of the s.25A offence, and by finding planned or organised criminal activity when the evidence did not establish planning beyond what was inherent in the offences.

Jurisdiction
Australia
Judgment Date
27 February 2009
Procedural Posture
Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal and Sentence Appeal in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal upheld; sentence on Count 2 set aside; applicant re-sentenced and ordered to be released to parole forthwith.
Legal Topics
['parity Principle' 'severity Appeal' 'ongoing Supply of Prohibited Drug' 'aggravating Factors' 'financial Gain as Element of Offence' 'planned or Organised Criminal Activity' 're Sentencing']
['criminal Law' 'sentencing' 'drug Offences'] ['parity Principle' 'severity Appeal' 'ongoing Supply of Prohibited Drug' 'aggravating Factors' 'financial Gain as Element of Offence' 'planned or Organised Criminal Activity' 're Sentencing']

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Procedural Posture

Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal and Sentence Appeal in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the applicant had a justifiable sense of grievance because the sentence imposed on her was very similar to that imposed on her co-offender despite differences in their culpability and circumstances.' 'Whether the sentencing judge erred by treating financial gain as an aggravating factor for the s.25A Drug Misuse and Trafficking Act 1985 offence when financial reward was an element of that offence.' 'Whether the sentencing judge erred by finding that the offences were aggravated because they were part of a planned or organised criminal activity within s.21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999.']

Ratio Decidendi

The sentence for Count 2 could not stand because the sentencing judge erred in treating the applicant as having culpability comparable to her co-offender despite findings that the co-offender had the greater and more dominant role and that the applicant was pressured and influenced by him in a violent domestic relationship. The judge also erred by relying on an unsupported finding that the applicant derived financial gain, by treating financial gain as an aggravating factor when it was an element of the s.25A offence, and by finding planned or organised criminal activity when the evidence did not establish planning beyond what was inherent in the offences.

Court Disposition

Leave to appeal granted; appeal upheld; sentence on Count 2 set aside; applicant re-sentenced and ordered to be released to parole forthwith.

Orders

  • ['Leave to appeal be granted.' 'The appeal be upheld.' 'The sentences imposed in respect of Count 2, ongoing supply of prohibited drug (methylamphetamine) contrary to s.25A(1) of the Drug Misuse and Trafficking Act be set aside and the applicant be re-sentenced by this Court.' 'In respect of Count 2, the applicant...