Carter (a pseudonym) v R [2021] NSWCCA 208

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carter (a pseudonym) v R [2021] NSWCCA 208 Hearing dates: 18 August 2021 Date of orders: 10 September 2021 Decision date: 10 September 2021 Before: Bathurst CJ at [1] Simpson AJA at [2] Bellew J at [3] Decision: (1) Grant leave to appeal against sentence. (2) Allow the appeal. (3) Quash the aggregate sentence imposed on the applicant in the District Court. (4) Give the following indicative sentences: (a) count 1 – 4 years and 9 months imprisonment; (b) count 2 – 3 years imprisonment; (c) count 3 – 3 years imprisonment; (d) offence (i) on the s 166 Certificate – 6 months imprisonment; and (e) offence (ii) on the s 166 Certificate – 6 months imprisonment. (5) In lieu of the aggregate sentence imposed in the District Court, impose an aggregate sentence of 6 years and 9 months imprisonment commencing on 14 November 2018 and expiring on 13 August 2025. (6) Specify a non-parole period of 4 years and 2 months imprisonment commencing on 14 November 2018 and expiring on 13 January 2023. Catchwords: CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Drug supply offences – Where counsel for the applicant on sentence made a concession to the sentencing judge that the offending was in the mid-range – Where a finding was made by the sentencing judge in accordance with that concession – Whether exceptional circumstances had been established allowing the applicant to resile from that concession – Whether there had been a miscarriage of justice – Whether finding of the sentencing judge was reasonably open – Limited role played by applicant – Where offending had no upper limit in terms of quantity – Discussion as to the significance of the weight of the drug in such circumstances – Finding that the offending was in the mid-range not reasonably open on the evidence – Error established – Re-sentence – Unlikely to re-offend – Genuine remorse – Excellent prospects of rehabilitation – Finding of special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Bayram v R [2012] VSCA 6 FL v R [2020] NSWCCA 114 Keane v R [2011] VSCA 156 McDowall v R [2019] NSWCCA 29 Mulato v R [2006] NSWCCA 282 Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 R v Amati [2019] NSWCCA 193 Romero v R (2011) 32 VR 486; [2011] VSCA 45 Sharma v R [2017] NSWCCA 85 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Carter (a pseudonym) – Applicant Regina - Respondent Representation: Counsel: A Evers – Applicant C Curtis – Respondent