Sharbell v The Queen

In the case of Sharbell v The Queen, the applicant was appealing against his sentence of 5 years and 3 months’ imprisonment for various offences, including an attempt to traffic a commercial quantity of 1,4-butanediol, firearms offences, driving while disqualified, and dealing with property suspected of being proceeds of crime. The applicant argued that his culpability was reduced because the product he attempted to traffic was unsaleable, and that the judge did not properly consider the effect of incarceration on his psychological state. Additionally, the applicant claimed that the sentence was manifestly excessive due to changes in sentencing practices for trafficking commercial quantities of drugs.

The court considered whether the judge properly took into account the applicant’s plea of guilty and the likely effect of incarceration on the applicant’s psychological state. The court also examined whether the sentence was manifestly excessive in light of the changed sentencing practice for trafficking commercial quantities, as outlined in the case of Gregory (a pseudonym) v The Queen. The court found that the judge had considered the applicant’s plea of guilty and the potential impact of incarceration on the applicant’s psychological state. The court further held that the sentence was not manifestly excessive, taking into account the changed sentencing practice.

In relation to the issue of procedural fairness, the court found that there was no obligation on the judge to warn of the risk of a custodial penalty, as the defence counsel had submitted that a non-custodial penalty was appropriate. The court also considered the late filing of a report from a forensic psychologist, which provided evidence of the applicant’s mental functioning. The court held that the late filing of the report did not result in a sentencing error, as the plea submissions focused on the applicant’s physical injuries and there was no development of the submission regarding the applicant’s mental functioning. The court emphasised the importance of compliance with Practice Note No 1 of 2017, Sentencing Hearings: Expert Reports on Mental Functioning of Offender.

The application for leave to appeal was refused. The court held that the sentence was not manifestly excessive, and that there was no procedural unfairness or sentencing error in relation to the expert evidence.