Robertson v R

Case [2017] NSWCCA 205


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Robertson v R [2017] NSWCCA 205
Hearing dates: 11 August 2017
Date of orders: 11 August 2017
Decision date: 23 August 2017
Before: 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
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2008 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 6, 7, 12, 21A, 50, 53A, 66, Pt 3 Div 3, Pt 3 Div 4, Pt 5
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 10, 25, 29
Poisons and Therapeutic Goods Act 1966 (NSW), s 16
Cases Cited: Abdul v R [2013] NSWCCA 247
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
EF v R [2015] NSWCCA 36
Fayd’Herbe v R [2007] NSWCCA 20
Forti v R [2016] NSWCCA 127
Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Police v Cadd (1997) 69 SASR 150
R v Bardo (NSWCCA, 14 July 1992, unreported)
R v Cacciola (1998) 104 A Crim R 178 at 182
R v Carrion (2000) 49 NSWLR 149; [2000] NSWCCA 191
R v Ejefekaire [2016] NSWCCA 308
R v Gallagher (1991) 23 NSWLR 220
R v Gip; R v Ly (2006) 161 A Crim R 173; [2006] NSWCCA 115
R v Jurisic (1998) 45 NSWLR 209
R v McDonnell [1997] 1 SCR 948
R v Michael John Hayes…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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