YY v Regina [2016] NSWCCA 124

YY v Regina [2016] NSWCCA 124

Because Muldrock error was conceded, the Court was required to exercise the sentencing discretion afresh for Count 3. Count 3 was objectively serious and clearly above the middle range for offences of its type, and the Court did not increase the discount for assistance, reduce the sentence for delay or family hardship, or vary the statutory parole ratio for special circumstances. However, the appellant's significant post-sentence rehabilitation, education, leadership, remorse, good custodial conduct and prospects of reintegration substantially affected the proper sentence. A lesser sentence for Count 3 was therefore warranted in law, with a 20-year starting point and a continuing combined...

Jurisdiction
Australia
Judgment Date
24 June 2016
Procedural Posture
Criminal Appeal Against Sentence / Referral to the Court of Criminal Appeal Pursuant to S 86 of the Crimes (appeal and Review) Act 2001, Treated as an Appeal Under S 5(1)(c) of the Criminal Appeal Act 1912
Outcome
Appeal allowed; sentence for Count 3 quashed and a lesser sentence imposed.
Legal Topics
['supply of Prohibited Drug' 'large Commercial Quantity of Cocaine' 'standard Non Parole Period' 'muldrock Error' 're Sentencing' 'post Sentence Rehabilitation' 'assistance to Authorities' 'early Guilty Plea']
['criminal Law' 'sentencing' 'criminal Appeals' 'drug Offences'] ['supply of Prohibited Drug' 'large Commercial Quantity of Cocaine' 'standard Non Parole Period' 'muldrock Error' 're Sentencing' 'post Sentence Rehabilitation' 'assistance to Authorities' 'early Guilty Plea']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Referral to the Court of Criminal Appeal Pursuant to S 86 of the Crimes (appeal and Review) Act 2001, Treated as an Appeal Under S 5(1)(c) of the Criminal Appeal Act 1912

Legal Issues

  1. 1 ['Whether the sentencing judge at first instance and the Court of Criminal Appeal in the initial appeal erred in their consideration of the standard non-parole period in light of Muldrock v The Queen (2011) 244 CLR 120.' 'Whether, after error was conceded, a lesser sentence for Count 3 was warranted in law under s 6(3) of the Criminal Appeal Act 1912.' "How the appellant's objective criminality, assistance to authorities, early guilty plea, post-sentence rehabilitation, delay, family hardship and alleged special circumstances should affect re-sentencing."]

Ratio Decidendi

Because Muldrock error was conceded, the Court was required to exercise the sentencing discretion afresh for Count 3. Count 3 was objectively serious and clearly above the middle range for offences of its type, and the Court did not increase the discount for assistance, reduce the sentence for delay or family hardship, or vary the statutory parole ratio for special circumstances. However, the appellant's significant post-sentence rehabilitation, education, leadership, remorse, good custodial conduct and prospects of reintegration substantially affected the proper sentence. A lesser sentence for Count 3 was therefore warranted in law, with a 20-year starting point and a continuing combined...

Court Disposition

Appeal allowed; sentence for Count 3 quashed and a lesser sentence imposed.

Orders

  • ['Allow the appeal.' 'Quash the sentence for Count 3 imposed by this Court in March 2011.' 'In lieu of the sentence imposed by this Court for Count 3 in March 2011, sentence the appellant to a term of imprisonment of 8 years and 3 months commencing on 26 August 2009 and expiring on 25 November 2017 with a balance of...