Macfarlan JA; Hoeben CJ at CL; Leeming JA; Johnson J; R A Hulme J
Decision:
1. Leave to appeal against sentence allowed. 2. Appeal dismissed.
Catchwords:
SENTENCING – appeal against sentence – three drug supply offences – where sentencing judge applied the Clark “principle” that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances – whether Clark “principle” incompatible with judicial sentencing discretion – consideration of general sentencing principles – Clark “principle” prescriptive not descriptive – no statutory root – judicially created constraint on the sentencing discretion – Clark “principle” inconsistent with sentencing discretion and should no longer be applied
SENTENCING – appeal against sentence – error established in judge applying Clark “principle” – re-exercise of sentencing discretion – no lesser sentence warranted in law
SENTENCING – general principles – drug supply cases – significance of deterrence and protection of the community – attention to legislative guideposts of high maximum penalties and standard non-parole periods – cases of drug dealing to a substantial degree may ordinarily require custodial sentences – role of s 5(1) Crimes (Sentencing Procedure) Act 1999
SENTENCING – offender a solicitor – whether sentencing judge failed to take into account loss of ability to practise law – prominent feature of case – whilst not explicitly referred to as extra-curial punishment, no doubt sentencing judge had regard to matter
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Parente v The Queen [2017] NSWCCA 284
Case
[2017] NSWCCA 284
Decision Date
CaseChat Overview and Summary
In the case of Parente v R, the appellant was convicted of three drug supply offences and appealed against his sentence. The appeal was heard by the High Court of Australia, which was required to determine whether the sentencing judge had erred in applying the so-called "Clark principle" to impose a custodial sentence. The "Clark principle" is a judicially created guideline that suggests that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances. The appellant argued that the principle was inconsistent with the judicial sentencing discretion provided by statute.
The court found that the "Clark principle" was not rooted in statute and was merely a judicially created constraint on sentencing discretion. It was not prescriptive but descriptive, and its application could be inconsistent with the sentencing discretion provided by statute. The court concluded that the principle should no longer be applied as it was inconsistent with the sentencing discretion provided by statute. The court then re-exercised its sentencing discretion and found that no lesser sentence was warranted in law. The court emphasised the significance of deterrence and protection of the community in drug supply cases, and noted that cases of drug dealing to a substantial degree may ordinarily require custodial sentences.
The court also considered whether the sentencing judge had failed to take into account the appellant's loss of ability to practise law as a result of his conviction. The court found that the sentencing judge had not explicitly referred to this as an extra-curial punishment, but it was clear that the matter had been taken into account. The court noted that the appellant's profession as a solicitor was a prominent feature of the case, and the loss of his ability to practise law was a significant consequence of his conviction. However, the court found that this did not warrant a lesser sentence in this case.
The final orders of the court were that the appeal against sentence be dismissed, and the original sentence of imprisonment be upheld. The court emphasised the importance of deterrence and protection of the community in drug supply cases, and the need for custodial sentences in cases of drug dealing to a substantial degree. The court also noted the significance of the appellant's loss of ability to practise law, but found that this did not warrant a lesser sentence in this case.