Chartres-Abbott v R [2021] NSWCCA 239

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chartres-Abbott v R [2021] NSWCCA 239 Hearing dates: 20 August 2021 Date of orders: 6 October 2021 Decision date: 06 October 2021 Before: Brereton JA at [1]; Campbell J at [47]; Hamill J at [48] Decision: (1) Grant leave to the applicant to appeal against the aggregate sentence imposed on 28 August 2020 by the District Court; (2) Allow the appeal; and (3) Quash the aggregate sentence imposed in the District Court on 28 August 2020, and in lieu thereof: (a) Impose an aggregate sentence of ten years' imprisonment to commence from 25 May 2019 and expire on 24 May 2029; (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of six years, and specify that the earliest date the applicant will be eligible to be released on parole is 25 May 2025; and (c) Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows: (i) Sequence 1 (Supply 888.79 grams of methylamphetamine): a non-parole period of four years and six months and additional term of three years, for a total of seven years and six months; (ii) Sequence 2 (Supply 368.8 grams of heroin): a non-parole period of two years and three months and additional term of one year and six months, for a total of three years and nine months; (iii) Sequence 6 (Supply 372.63 grams of methylamphetamine): a non-parole period of two years and nine months and additional term of one year and nine months, for a total of four years and six months; (iv) Sequence 3 (Possess shortened Sportco .22 rifle with magazine without authority): a term of imprisonment of three years and four months; and (v) Sequence 19 (Possess shortened Sterling .22 firearm without authority): a term of imprisonment of two years and seven months. Catchwords: CRIME – Appeals – Appeal against sentence – Manifest excess – Drug offences – Supply prohibited drug – One count of large commercial quantity of methylamphetamine and two counts of commercial quantities of heroin and methylamphetamine – Firearms offences – Two counts of possess shortened firearm – Aggregate sentence of fourteen years, eight years six months non-parole – Use of discounts to indicative sentences to determine aggregate sentence but for discounts – Use of comparable cases indicating substantially shorter sentences in like cases and in cases involving considerably greater quantities of methylamphetamine – Manifest excess established CRIME – Appeals – Appeal against sentence – Re-sentence – Special circumstances and reduced moral culpability – More substantial degree of concurrency – Aggregate sentence of ten years, six years non-parole, imposed Legislation Cited: Crimes Act 1900 (NSW), s 193C(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2A), 53A(2)(b) Criminal Appeal Act 1912 (NSW), s 5(1)(c) Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2) Firearms Act 1996 (NSW), ss 51D(2), 62(1)(b), 65(3) Cases Cited: Aryal v R [2021] NSWCCA 2 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Elsaj v R [2017] NSWCCA 124 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Huang v R [2019] NSWCCA 144 Hughes v R [2018] NSWCCA 2 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 Jackson v R [2021] NSWCCA 15 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McLean v R [2020] NSWCCA 344 Mills v R [2017] NSWCCA 87 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 Pratt v R [2021] NSWCCA 76 R v Li [2014] NSWCCA 327 R v Mahmud [2010] NSWCCA 219 Roberts (a pseudonym) v R [2019] NSWCCA 102 Tiew v R [2020] NSWCCA 234 Toole v R (2014) 247 A Crim R 272; [2014] NSWCCA 318 Vigo v R [2009] NSWCCA 98 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Wright v R [2019] NSWCCA 134 Category: Principal judgment Parties: Mark Chartres-Abbott (Applicant) Crown (Respondent) Representation: Counsel: Ms G E Lewer (Applicant) Ms C Dodds (Respondent)