Brown v R [2013] NSWCCA 44

Brown v R [2013] NSWCCA 44

The sentencing judge erred in failing to acknowledge the applicant's time spent in residential rehabilitation as quasi-custody. Given the applicant's successful completion of 257 days in strict residential rehabilitation, a discount at the top of the available discretionary range (75% of 257 days) should be allowed by backdating the commencement date of the non-parole period.

Jurisdiction
Australia
Judgment Date
07 March 2013
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence; Re Sentencing
Outcome
Leave to appeal granted; appeal allowed; sentence varied by backdating commencement of non-parole period; other sentencing orders confirmed.
Legal Topics
['appeal Against Sentence' 'supply of Prohibited Drugs' 'quasi Custody' 'discount for Rehabilitation' 'sentencing Error']
['criminal Law'] ['appeal Against Sentence' 'supply of Prohibited Drugs' 'quasi Custody' 'discount for Rehabilitation' 'sentencing Error']

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Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence; Re Sentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to allow a discount for quasi-custody served in rehabilitation' "Whether the sentencing judge failed to take into account applicant's time in residential rehabilitation as part of sentencing"]

Ratio Decidendi

The sentencing judge erred in failing to acknowledge the applicant's time spent in residential rehabilitation as quasi-custody. Given the applicant's successful completion of 257 days in strict residential rehabilitation, a discount at the top of the available discretionary range (75% of 257 days) should be allowed by backdating the commencement date of the non-parole period.

Court Disposition

Leave to appeal granted; appeal allowed; sentence varied by backdating commencement of non-parole period; other sentencing orders confirmed.

Orders

  • ['Grant leave to appeal against sentence.' 'Allow the appeal.' 'Vary the sentence by directing the non-parole period of 2 years and 6 months commence on 26 November 2011 and to expire on 25 May 2014 and otherwise confirm the sentencing orders.']