Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Carter (a pseudonym) v R [2021] NSWCCA 208 Hearing dates: 18 August 2021 Date of orders: 10 September 2021 Decision date: 10 September 2021 Before: Bathurst CJ at [1]
Simpson AJA at [2]
Bellew J at [3]Decision: (1) Grant leave to appeal against sentence.
(2) Allow the appeal.
(3) Quash the aggregate sentence imposed on the applicant in the District Court.
(4) Give the following indicative sentences:
(a) count 1 – 4 years and 9 months imprisonment;
(b) count 2 – 3 years imprisonment;
(c) count 3 – 3 years imprisonment;
(d) offence (i) on the s 166 Certificate – 6 months imprisonment; and
(e) offence (ii) on the s 166 Certificate – 6 months imprisonment.(5) In lieu of the aggregate sentence imposed in the District Court, impose an aggregate sentence of 6 years and 9 months imprisonment commencing on 14 November 2018 and expiring on 13 August 2025.
(6) Specify a non-parole period of 4 years and 2 months imprisonment commencing on 14 November 2018 and expiring on 13 January 2023.
Catchwords: CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Drug supply offences – Where counsel for the applicant on sentence made a concession to the sentencing judge that the offending was in the mid-range – Where a finding was made by the sentencing judge in accordance with that concession – Whether exceptional circumstances had been established allowing the applicant to resile from that concession – Whether there had been a miscarriage of justice – Whether finding of the sentencing judge was reasonably open – Limited role played by applicant – Where offending had no upper limit in terms of quantity – Discussion as to the significance of the weight of the drug in such circumstances – Finding that the offending was in the mid-range not reasonably open on the evidence – Error established – Re-sentence – Unlikely to re-offend – Genuine remorse – Excellent prospects of rehabilitation – Finding of special circumstances
Legislation Cited: Crimes (Sentencing Procedure) Act1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act1985 (NSW)
Cases Cited: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
Romero v R (2011) 32 VR 486; [2011] VSCA 45
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment Parties: Carter (a pseudonym) – Applicant
Regina - RespondentRepresentation: Counsel:
Solicitors:
A Evers – Applicant
C Curtis – Respondent
Katsoolis & Co – Applicant
C Hyland, Solicitor for Public Prosecutions –Respondent
File Number(s): 2018/350639 Publication restriction: Nil Decision under appeal
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- AGLC
- Carter (a pseudonym) v The Queen [2021] NSWCCA 208
- Case
- [2021] NSWCCA 208
- Decision Date
CaseChat Overview and Summary
The court considered the role played by Carter in the offending and noted that his involvement was limited. It was highlighted that the nature of the drug supply offences had no upper limit in terms of the quantity of drugs involved. The court engaged in a detailed discussion about the significance of the weight of the drug in such circumstances. Ultimately, the court found that the finding of the sentencing judge was not reasonably open on the evidence. The court established that an error had been made, and thus, the case warranted re-sentencing. The court acknowledged that Carter was unlikely to re-offend, expressed genuine remorse, and had excellent prospects of rehabilitation. The court found special circumstances existed, justifying a re-sentencing hearing.
The court granted leave to appeal and ordered a re-sentencing hearing, taking into account the special circumstances identified. The decision underscored the importance of ensuring that findings of fact by sentencing judges are reasonably open on the evidence, particularly in cases where concessions made by counsel play a significant role in the sentencing outcome. The court’s decision highlighted the need for meticulous consideration of all factors, including the offender’s role, the nature of the offence, and prospects for rehabilitation when determining the appropriate sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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