R v Deluca

This case concerned an appeal against sentence by the defendant and a cross-appeal by the Director of Public Prosecutions. The defendant had pleaded guilty to two counts of possessing a controlled drug for supply. He was sentenced to two years and eight months imprisonment for these offences, with the court also revoking an earlier suspended sentence of eight months imprisonment. This resulted in a total term of three years and four months imprisonment, with a 20-month non-parole period. The appeals were heard by Gray, Sulan, and Peek JJ.

The central legal issue before the court was whether the sentencing judge had erred by failing to adequately consider the unexpired period of parole the defendant was due to serve as a consequence of the revocation of his suspended sentence. The defendant argued the sentence was manifestly excessive, while the Director sought to appeal on the basis of this specific sentencing error.

The Court of Appeal found that a material error had indeed occurred in the sentencing process, specifically the failure to account for the unexpired parole period. The court allowed both the defendant's appeal and the Director's appeal, setting aside the original sentence. The defendant was resentenced on the drug supply charges to one year, two months, and four days imprisonment. The suspension of the eight-month sentence for dangerous driving to escape police pursuit was revoked. The court ordered that the new drug supply sentence be served cumulatively on the revoked suspended sentence. Crucially, the revoked eight-month sentence was directed to commence after the expiration of the defendant's unexpired parole period of five months and seven days. This resulted in a total time in prison of two years, three months, and 11 days, with a non-parole period of 12 months fixed.