Naberezhnov v R [2021] NSWCCA 142

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Naberezhnov v R [2021] NSWCCA 142 Hearing dates: 28 May 2021 Date of orders: 7 July 2021 Decision date: 07 July 2021 Before: Harrison J at [1] Adamson J at [2] Bellew J at [8] Decision: (1) The time in which to file the application for leave to appeal against sentence is extended to 21 December 2020. (2) Leave to appeal against sentence is granted. (3) The appeal is dismissed. Catchwords: CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to an offence of supplying a prohibited drug at a dance festival – Where in assessing the objective seriousness of the offending the sentencing judge took judicial notice of the fact that a number of people had died as a consequence of such offending which occurred on a regular basis and was often committed by young people of good backgrounds who had no criminal convictions –Whether such considerations were relevant to an assessment of objective seriousness as opposed to being relevant to general deterrence – Error established CRIMINAL LAW – Offences – Application for leave to appeal against sentence – Where applicant pleaded guilty to further counts of ongoing supply of a prohibited drug and offering to supply a prohibited drug – Where competing submissions had been made as to the nature and extent of the applicant's role and the objective seriousness of his offending – Where the Crown's submissions as to objective seriousness were advanced partly on the basis of an erroneous assertion which was unsupported by the evidence – Where the sentencing judge adopted the Crown's submissions in the absence of the exposition of the reasoning process which led him to make that determination – Where the sentencing judge failed to engage with a submission advanced on behalf of the offender as to his role – Importance of the assessment of objective seriousness of offending in the sentencing process – Necessity for a judge to give proper reasons as an incident of the judicial process – Error established CRIMINAL LAW – Offences – Re-sentence – Objective seriousness of the offending – Significant role played by the offender in respect of each count – Need for both general and personal deterrence – No lesser sentence warranted – Appeal against sentence dismissed Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No. 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 FL v R [2020] NSWCCA 114 MRN v R [2006] NSWCCA 155 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Murray v R [2017] NSWCCA 262 Pettitt v Dunkley [1971] 1 NSWLR 376 PO v R [2020] NSWCCA 129 R v Cage [2006] NSWCCA 304 R v Campbell [2014] NSWCCA 102 R v CBK [2002] NSWCCA 457; (2002) 135 A Crim R 260 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Hoon; R v Pouoa [2000] NSWCCA 137 R v Medd (a pseudonym) [2016] NSWCCA 216 R v Son Giang [2005] NSWCCA 387 R v Van Ryn [2016] NSWCCA 1 Roberts (a pseudonym) v R [2019] NSWCCA 102 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Vandeventer v R [2013] NSWCCA 33 Vu v R [2006] NSWCCA 188 Category: Principal judgment Parties: Alexander Naberezhnov – Applicant Regina – Respondent Representation: Counsel: D Carroll – Applicant C Young – Respondent