McKinnon v R [2020] NSWCCA 106

McKinnon v R [2020] NSWCCA 106

The sentencing judge erred because the Form 1 matters attached to the second count were not taken into account with regard to a specific offence, as required by the Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3. The identical indicative sentences for essentially the same offending on both counts demonstrated the error. That specific error required the Court to resentence the applicant afresh. Having regard to the objective seriousness, the Form 1 offences attaching to count 2, the applicant's subjective circumstances, guilty plea, rehabilitation prospects, special circumstances and totality, the appropriate sentence was an aggregate sentence of 8 years with a non-parole period...

Jurisdiction
Australia
Judgment Date
27 May 2020
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal against sentence allowed; sentence quashed; applicant resentenced.
Legal Topics
['aggregate Sentence' 'indicative Sentences' 'form 1 Offences' 'drug Supply' 'resentencing on Appeal' 'standard Non Parole Period']
['criminal Law' 'sentencing'] ['aggregate Sentence' 'indicative Sentences' 'form 1 Offences' 'drug Supply' 'resentencing on Appeal' 'standard Non Parole Period']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in the treatment of Form 1 offences attached to the second count when imposing an aggregate sentence and indicative sentences.' 'Whether, once sentencing error was established, the Court should exercise the sentencing discretion afresh.' 'What aggregate sentence, non-parole period and indicative sentences should be imposed on resentence.']

Ratio Decidendi

The sentencing judge erred because the Form 1 matters attached to the second count were not taken into account with regard to a specific offence, as required by the Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3. The identical indicative sentences for essentially the same offending on both counts demonstrated the error. That specific error required the Court to resentence the applicant afresh. Having regard to the objective seriousness, the Form 1 offences attaching to count 2, the applicant's subjective circumstances, guilty plea, rehabilitation prospects, special circumstances and totality, the appropriate sentence was an aggregate sentence of 8 years with a non-parole period...

Court Disposition

Leave to appeal granted; appeal against sentence allowed; sentence quashed; applicant resentenced.

Orders

  • ['Leave to appeal granted.' 'Appeal against sentence allowed.' 'Sentence imposed by Grant DCJ on 15 April 2019 is quashed and in lieu thereof the following sentence is imposed: an aggregate sentence of 8 years, to commence on 2 May 2018 and expire on 1 May 2026, with an aggregate non-parole period of 5 years and 6...