Fernando v The Queen

Fernando, the applicant, appealed against his sentence following a conviction for trafficking in a commercial quantity of a drug of dependence. The case was heard by the Court of Criminal Appeal in Victoria. The applicant had previously been convicted of a similar offence and was on a community correction order when he committed the current offence. Despite pleading not guilty, the applicant was sentenced to a total effective term of seven years and eight months imprisonment, with a non-parole period of three years and ten months. The appeal focused on whether the sentence was manifestly excessive and if the trial judge had erred in applying an increased sentencing standard for trafficking in a commercial quantity of a drug of dependence.

The central issue in the appeal was whether the sentence imposed by the trial judge was manifestly excessive. A further issue was whether the trial judge had correctly applied the current sentencing standards for the offence in question. The applicant argued that the trial judge had mistakenly believed there had been an uplift in sentencing standards for trafficking in a commercial quantity of a drug of dependence, which led to an excessively harsh sentence. The Crown, on the other hand, contended that the sentence was appropriate and within the range of sentences typically imposed for such offences.

The Court of Criminal Appeal found that the trial judge had indeed erred by applying an increased sentencing standard that was not applicable. The court emphasised the importance of predictability and consistency in sentencing, as well as the relevance of current sentencing practices. The Court of Appeal referred to previous cases, including Gregory (a Pseudonym) v The Queen and Haddara v The Queen, to highlight the appropriate range of sentences for this type of offence. Consequently, the Court allowed the appeal and ordered a resentencing of the applicant, taking into account the correct sentencing standards.

The Court of Criminal Appeal quashed the original sentence and ordered that the applicant be resentenced by the trial judge, applying the correct sentencing principles and standards. The Court emphasised that the resentencing should reflect the current sentencing practices for trafficking in a commercial quantity of a drug of dependence, without the erroneous uplift in sentencing standards that had been applied previously.