Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Naberezhnov v R [2021] NSWCCA 142 Hearing dates: 28 May 2021 Date of orders: 7 July 2021 Decision date: 07 July 2021 Before: Harrison J at [1]
Adamson J at [2]
Bellew J at [8]Decision: (1) The time in which to file the application for leave to appeal against sentence is extended to 21 December 2020.
(2) Leave to appeal against sentence is granted.
(3) The appeal is dismissed.
Catchwords: CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to an offence of supplying a prohibited drug at a dance festival – Where in assessing the objective seriousness of the offending the sentencing judge took judicial notice of the fact that a number of people had died as a consequence of such offending which occurred on a regular basis and was often committed by young people of good backgrounds who had no criminal convictions –Whether such considerations were relevant to an assessment of objective seriousness as opposed to being relevant to general deterrence – Error established
CRIMINAL LAW – Offences – Application for leave to appeal against sentence – Where applicant pleaded guilty to further counts of ongoing supply of a prohibited drug and offering to supply a prohibited drug – Where competing submissions had been made as to the nature and extent of the applicant’s role and the objective seriousness of his offending – Where the Crown’s submissions as to objective seriousness were advanced partly on the basis of an erroneous assertion which was unsupported by the evidence – Where the sentencing judge adopted the Crown’s submissions in the absence of the exposition of the reasoning process which led him to make that determination – Where the sentencing judge failed to engage with a submission advanced on behalf of the offender as to his role – Importance of the assessment of objective seriousness of offending in the sentencing process – Necessity for a judge to give proper reasons as an incident of the judicial process – Error established
CRIMINAL LAW – Offences – Re-sentence – Objective seriousness of the offending – Significant role played by the offender in respect of each count – Need for both general and personal deterrence – No lesser sentence warranted – Appeal against sentence dismissed
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No. 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pettitt v Dunkley [1971] 1 NSWLR 376
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- Case
- [2021] NSWCCA 142
- Decision Date
CaseChat Overview and Summary
The court examined the sentencing judge's approach to assessing the objective seriousness of the offences, noting that while the judge took into account the broader consequences of such crimes, this did not necessarily equate to an appropriate assessment of objective seriousness. The judge's reliance on the Crown's submissions, which included an unsupported assertion, without a clear reasoning process, was problematic. Furthermore, the judge did not adequately address the applicant's submissions regarding his role in the offending. These factors combined to establish that there was an error in the assessment of the objective seriousness of the offending and in the reasoning process.
In light of the errors identified, the court found that the applicant's significant role in the drug supply warranted a sentence that ensured both general and personal deterrence. Despite the errors, the court concluded that a lesser sentence was not warranted. Consequently, the appeal against the sentence was dismissed, and the original sentence stood.
The court's decision emphasised the importance of correctly assessing the objective seriousness of the offending and the necessity for judges to provide clear and reasoned justifications for their determinations. These aspects are crucial in ensuring the integrity of the sentencing process and maintaining public confidence in the judicial system.
Orders
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Background
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Evidence
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Decision
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