Emanuele v R [2023] NSWCCA 316

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Emanuele v R [2023] NSWCCA 316 Hearing dates: 15 November 2023 Date of orders: 8 December 2023 Decision date: 08 December 2023 Before: Basten AJA at [1]; Davies J at [13]; Cavanagh J at [14] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed by Judge J A English in the District Court on 10 March 2023 is quashed. (4) The applicant is sentenced to a term of imprisonment for four years commencing on 6 October 2022 and expiring on 5 October 2026 with a non-parole period of two years and four months commencing on 6 October 2022. The applicant will be eligible for parole on 5 February 2025. Catchwords: CRIME — appeals — appeal against sentence — application for leave to appeal – parity – where applicant and co-offender received identical sentences – where co-offender convicted of a more serious offence – whether the applicant has a justifiable sense of grievance – appeal allowed – applicant resentenced Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Cases Cited: Chiarlini v R [2023] NSWCCA 227 Elias v R (2013) 248 CLR 483; [2013] HCA 31 Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 29 Humphreys v R [2020] NSWCCA 144 Lowe v R (1984) 154 CLR 606; [1984] HCA 46 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Narayan v R [2022] NSWCCA 163 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Kelly (2005) 155 A Crim R 499; [2005] NSWCCA 280 Tan v R [2014] NSWCCA 96 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Tuivaga v R [2015] NSWCCA 145 Category: Principal judgment Parties: Philip David Emanuele (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: P Boulten SC with S Jeliba (Applicant) E Nicholson (Respondent)