Simpson JA at [1]; Harrison J at [107]; Davies J at [108]
Decision:
1. Grant leave to appeal against sentence.
2. Appeal allowed. Sentence quashed.
3. In lieu thereof sentence the applicant to imprisonment for a fixed term of 12 months commencing today (11 August 2017).
4. Order pursuant to section 12(1) of the Crimes (Sentencing Procedure) Act 1999 that execution of the whole of the sentence be suspended.
5. Direct that the applicant be released from custody on condition that he enter into a good behaviour bond for a term of 12 months.
Catchwords:
SENTENCING – appeal against sentence – where error on Form 1 – where offence not known to law – resentencing necessary
SENTENCING – penalties – intensive correction orders – whether available for offences found to constitute “substantial trafficking” of prohibited drugs
SENTENCING – appeal against sentence – general principles – drug offences – where “substantial trafficking” in prohibited drugs found by sentencing judge – whether full-time custody mandated but for “exceptional circumstances”
SENTENCING – appeal against sentence – general principles – consideration of sentencing discretion – consideration of judicially mandated sentencing “policy” – consideration of the “policy” in Clark
[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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AGLC
Robertson v R [2017] NSWCCA 205
Case
[2017] NSWCCA 205
Decision Date
CaseChat Overview and Summary
In this appeal, the respondent, Robertson, sought to challenge the sentence imposed by the sentencing judge following his conviction for drug trafficking offences. The case was heard in the Court of Appeal. Robertson's appeal centred on the sentence imposed for the trafficking of prohibited drugs, specifically arguing that the sentencing judge had erred in the application of the law, including the application of Form 1 and the classification of the offence as "substantial trafficking". Additionally, Robertson argued that an intensive correction order should have been considered as an alternative to imprisonment.
The primary legal issues for the court were whether the sentencing judge had erred in applying the law and whether an intensive correction order was an appropriate alternative to imprisonment for an offence classified as "substantial trafficking". The court was also required to consider the sentencing principles relevant to drug trafficking offences, including the mandatory nature of full-time custody for such offences unless exceptional circumstances applied.
The Court of Appeal found that the sentencing judge had indeed erred in the application of the law, specifically in relation to Form 1 and the classification of the offence. The court held that the error necessitated a resentencing hearing. Regarding the alternative to imprisonment, the court noted that while intensive correction orders were generally available for drug offences, they were not suitable for cases of "substantial trafficking" as defined by the sentencing judge. The court concluded that full-time custody was mandated for such offences unless exceptional circumstances applied, and in this case, no such circumstances were present. The appeal was ultimately dismissed, but the sentence was quashed and the matter was remitted to the sentencing court for resentencing.
The court ordered that the sentence be quashed and the matter be remitted to the sentencing court for resentencing, in light of the errors identified and the principles outlined in the judgment.