Spinks v Director of Public Prosecutions (Cth) [2021] NSWCCA 308

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Spinks v Director of Public Prosecutions (Cth) [2021] NSWCCA 308 Hearing dates: 6 December 2021 Date of orders: 16 December 2021 Decision date: 16 December 2021 Before: Basten JA at [1]; Adamson and Wright JJ at [68] Decision: (1) Grant the applicant leave to appeal from the sentence imposed on him in the District Court on 1 March 2021. (2) Allow the appeal and set aside the sentence for the offence of importing a border controlled drug. (3) Sentence the applicant pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) to imprisonment for 2 years, 3 months to date from 1 March 2021. (4) Direct that the offender be released after serving the period of 15 months upon condition that he be of good behaviour for a period of 12 months to date from 31 May 2022 upon the offender entering into a recognizance himself in the sum of $2000 without security. Catchwords: CRIME – appeal and review – appeal against sentence – failure to consider properly offender's youth and prior good behaviour – offender 18 years of age at the time of offending – whether immaturity affected conduct CRIME – appeal and review – procedural fairness – failure to fix period of recognizance when sentencing – offender to be present and sentenced in open court – element of sentence contained only in orders as entered on court record CRIME – appeal and review – procedural fairness – offender's evidence consistent with defence – evidence elicited by prosecutor – offender given choice to change plea or change evidence on oath – withdrawn evidence treated as affecting credit CRIME – federal offences – drug importation offence – defence available if drugs not to be sold – evidence of predominant personal use – no evidence of intention to profit financially – factor in mitigation SENTENCING – mitigating factors – youth of offender – effects of immaturity – addiction to drug – substance abuse disorder – whether offender had control of drug use – drug use commenced at younger age Legislation Cited: Crimes Act 1914 (Cth), ss 19AC, 19AH, 19AHA, 20 Criminal Code (Cth), ss 307.2, 307.7 Criminal Appeal Act 1912 (NSW), s 6 Cases Cited: Abdul v R [2019] NSWCCA 18 Azzopardi v The Queen [2011] VSCA 372; 219 A Crim R 369 BP v R [2010] NSWCCA 159; 201 A Crim R 379 Byrne v R; Cahill v R [2021] NSWCCA 185; 97 MVR 85 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Mourtada v R [2021] NSWCCA 211 Tamer v R [2020] NSWCCA 333 Category: Principal judgment Parties: Cassidy John Spinks (Applicant) Director of Public Prosecutions (Cth) (Respondent) Representation: Counsel: Mr I McLachlan (Applicant) Mr A McGrath (Respondent)