YM v R [2023] NSWCCA 75

YM v R [2023] NSWCCA 75

The sentencing Judge erred by failing to consider the effect of the accepted connection between the Applicant's diagnosed mental conditions and his offending on moral culpability and the weight to be given to general deterrence. The Judge also made a material factual error in treating the LSD in Count 2 as more than 10 times the large commercial quantity without evidentiary or statutory foundation, and the assessments of Counts 2 and 3 as above the mid range of objective seriousness were not reasonably open. Those errors required the aggregate sentences to be quashed and the Applicant resentenced.

Jurisdiction
Australia
Judgment Date
05 April 2023
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Aggregate Sentences Imposed in the District Court of New South Wales
Outcome
Leave to appeal granted; appeal allowed; aggregate sentences quashed; Applicant resentenced.
Legal Topics
['appeal Against Sentence' 'drug Importation Offences' 'drug Supply Offences' 'mental Illness and Moral Culpability' 'general Deterrence' 'objective Seriousness' 'aggregate Sentences' 'resentencing']
['criminal Law' 'sentencing'] ['appeal Against Sentence' 'drug Importation Offences' 'drug Supply Offences' 'mental Illness and Moral Culpability' 'general Deterrence' 'objective Seriousness' 'aggregate Sentences' 'resentencing']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Aggregate Sentences Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the sentencing Judge erred by failing to consider the effect of the Applicant's mental illness on moral culpability, general deterrence and the onerousness of custody." 'Whether the sentencing Judge erred by finding that the Applicant had supplied more than 10 times the large commercial quantity of LSD in Count 2.' 'Whether the sentencing Judge erred in finding that Counts 2 and 3 were above the middle of the range of objective seriousness.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing Judge erred by failing to consider the effect of the accepted connection between the Applicant's diagnosed mental conditions and his offending on moral culpability and the weight to be given to general deterrence. The Judge also made a material factual error in treating the LSD in Count 2 as more than 10 times the large commercial quantity without evidentiary or statutory foundation, and the assessments of Counts 2 and 3 as above the mid range of objective seriousness were not reasonably open. Those errors required the aggregate sentences to be quashed and the Applicant resentenced.

Court Disposition

Leave to appeal granted; appeal allowed; aggregate sentences quashed; Applicant resentenced.

Orders

  • ['Leave to appeal is granted.' 'Appeal allowed.' 'The aggregate sentences imposed in the District Court on 14 May 2021 are quashed and in lieu thereof: for sequences 1, 2 and 3 the Applicant is sentenced to an aggregate sentence of 7 years imprisonment with a non-parole period of 3 years imprisonment commencing on...