Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Des Rosiers v R [2016] NSWCCA 196 Hearing dates: 12 August 2016 Decision date: 02 September 2016 Before: Macfarlan JA at [1];
Hall J at [36];
Bellew J at [37]Decision: (1) Appeal allowed.
(2) Quash the sentence imposed by the Court of Criminal Appeal on 10 February 2006 in respect of Count 1.
(3) For the offence of Supply a Large Commercial Quantity of LSD (Count 1), and taking into account the offences on the Form 1, sentence the appellant to a term of imprisonment of 14 years commencing on 20 April 2004 and expiring on 19 April 2018, with a non-parole period of 10 years and 6 months commencing on 20 April 2004 and expiring on 19 October 2014.
(4) Note that the sentences imposed by this Court in relation to Counts 2, 3 and 4 on 10 February 2006 expired prior to the expiration of the above sentence in relation to Count 1. As a result, the appellant became eligible for release to parole on expiration of the non-parole period in relation to his Count 1 sentence, being 19 October 2014.Catchwords: CRIMINAL LAW – sentence appeal – serious drug offence – matter referred to Court of Criminal Appeal to be dealt with as an appeal – alleged Muldrock and Kentwell errors in previous appeal decision – proper approach to re-sentencing – appellant had already been released on parole – rehabilitation demonstrated Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 78(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)
Criminal Appeal Act 1912 (NSW)Cases Cited: Barbaro v The Queen [2014] HCA 2; 253 CLR 58
Betts v The Queen [2016] HCA 25; 90 ALJR 758
Buttrose v Attorney General (NSW) [2015] NSWCA 221; 324 ALR 562
Hili v The Queen [2010] HCA 45; 242 CLR 520
Kentwell v R (No 2) [2015] NSWCCA 96
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Louizos v The Queen [2014] NSWCCA 242
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Pham [2015] HCA 39; 90 ALJR 13
Thammavongsa v R [2015] NSWCCA 107Category: Principal judgment Parties: Henry Edgar Des Rosiers (Appellant)
Regina (Respondent)Representation: Counsel:
Solicitors:
T A Game / J L Roy (Appellant)
H Baker (Respondent)
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2016/111165 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 24 February 2005
- Before:
- Black QC DCJ
- File Number(s):
- 2016/111165
Judgment
-
MACFARLAN JA: On 24 February 2005 the appellant was sentenced by a judge of the District Court in respect of the following offences of which he had been convicted following pleas of guilty:
“Count 1: Supply large commercial quantity of a prohibited drug (LSD)
Section 25(2) Drug Misuse and Trafficking Act 1985
Count 2:
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- AGLC
- Des Rosiers v The Queen [2016] NSWCCA 196
- Case
- [2016] NSWCCA 196
- Decision Date
CaseChat Overview and Summary
In addressing the issue, the court examined the previous appeal decision for any procedural or substantive errors. It considered whether the lower court had applied the correct legal principles in assessing the appellant's rehabilitation and whether it had adequately considered his release on parole. The court also assessed the seriousness of the offence and the appellant's criminal history. Ultimately, the court found that there had been errors in the previous appeal decision, leading to an inappropriate sentence. It concluded that the appellant's rehabilitation and parole release should have been given more weight.
The Court of Criminal Appeal quashed the original sentence and ordered a re-sentencing. The court acknowledged the appellant's demonstrated rehabilitation and his release on parole as significant factors that warranted a reduction in sentence. The decision highlighted the importance of considering rehabilitation and parole release when determining an appropriate sentence for a serious drug offence. The final orders of the court reflected this approach, emphasising the need for a balanced and fair sentencing process that takes into account the offender's rehabilitation efforts and the practical realities of parole release.
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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