1. Appeal allowed. 2. The sentences imposed in respect of Counts 1, 2 and 3 are quashed and in lieu thereof the respondent is re-sentenced on those counts as follows: (a) On Count 1 sentence the respondent to a fixed term of 4 years and 6 months from 8 February 2008 to expire on 7 August 2012; (b) On Count 2 sentence the respondent to a non-parole period of 6 years from 8 February 2009 to expire on 7 February 2015 with a balance of term of 3 years and 6 months from 8 February 2015 to expire on 7 August 2018; and (c) On Count 3 sentence the respondent to a fixed term of 2 years and 6 months from 8 November 2012 to expire on 7 May 2015.
CATCHWORDS:
CRIMINAL LAW – SENTENCING – Crown Appeal – manifest inadequacy of sentence – manufacture and supply of prohibited drugs – offences committed while on parole – sentences imposed to be served concurrently – whether structuring of sentences failed to reflect number and objective seriousness of offences – whether sentences inappropriately backdated - whether trial judge erred in double counting mitigating factors including early guilty pleas and provision of assistance to authorities - appeal allowed – sentences on three counts quashed - new sentences imposed
[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
R v AD [2008] NSWCCA 289
Case
[2008] NSWCCA 289
Decision Date
CaseChat Overview and Summary
The appellant, AD, appealed against the sentences imposed by the County Court of Victoria on three counts of manufacturing and supplying prohibited drugs, committed while on parole. The Court of Appeal was asked to consider whether the original sentencing was manifestly inadequate, particularly in light of the number and objective seriousness of the offences. The Crown also appealed, seeking to argue that the sentences were inadequate and that the trial judge erred in several respects in the sentencing process.
The Court of Appeal examined whether the sentences, which were to be served concurrently, appropriately reflected the seriousness of the offences. The court noted that the appellant had committed these offences while on parole, which indicated a failure to heed the opportunity for rehabilitation. The court further considered whether the sentences were appropriately backdated and if the trial judge erred in double counting mitigating factors, including the appellant's early guilty pleas and assistance provided to the authorities. The court found that the trial judge had indeed erred in these respects, and that the sentences failed to adequately reflect the seriousness of the offences.
The appeal was allowed by the Court of Appeal, which quashed the sentences on the three counts and imposed new sentences. The Court of Appeal emphasised that the sentences should reflect the gravity of the offences, particularly given the appellant's history and the fact that the crimes were committed while on parole. The new sentences were designed to appropriately address the appellant's culpability and the need for deterrence and rehabilitation.