Rosenberg v R [2022] NSWCCA 295

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rosenberg v R [2022] NSWCCA 295 Hearing dates: 5 December 2022 Date of orders: 21 December 2022 Decision date: 21 December 2022 Before: Meagher JA at [1]; Beech-Jones CJ at CL at [2] Garling J at [55] Decision: (1) Leave to appeal against sentence granted; (2) Appeal allowed; (3) The sentence imposed on the appellant on 17 December 2021 is set aside; (4) In lieu thereof: (a) Sentence the applicant to an aggregate term of imprisonment of 4 years and 10 months commencing on 4 October 2020 and expiring on 3 August 2025; (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole period of 2 years and 10 months expiring on 3 August 2023; (c) Specify that the earliest date the applicant will be eligible to be released on parole is 3 August 2023; (d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are: (i) for the offence of supply of not less than the commercial quantity of a prohibited drug, imprisonment for 4 years and 1 month with a non-parole period of 2 years and 5 months; and (ii) for the offence of supply of a prohibited drug, imprisonment for 2 years and 7 months. Catchwords: SENTENCING – parity – drug supply offences - assessment of comparative culpability of co-offenders – different statement of agreed facts for each offender – each offender only to be sentenced on the basis of the statement concerning that offender – comparison exercise does not involve considering role of offender as described in statement of facts for co-offender – leave granted – appeal allowed – applicant resentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 32(1) Crimes Act 1900 (NSW), s 193B(2) Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2) Cases Cited: Cameron v R [2017] NSWCCA 229 Chamon v R [2020] NSWCCA 112 DS v R [2014] NSWCCA 267 Hordern v R [2019] NSWCCA 138 Lewins v R [2007] NSWCCA 189 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Miles v R [2017] NSWCCA 266 Moran v R [2022] NSWCCA 217 R v O'Donoghue (1988) 34 A Crim R 397 Tatana v R [2006] NSWCCA 398 Usher v R [2016] NSWCCA 276 Youkhana v R [2011] NSWCCA 37 Category: Principal judgment Parties: Oscar Rosenberg (Applicant) Rex A (Crown) Representation: Counsel: T Woods (Applicant) I Nash (Crown)