YOUNG v REGINA [2007] NSWCCA 114

New South Wales Court of Criminal Appeal

CITATION: YOUNG v REGINA [2007] NSWCCA 114

HEARING DATE(S): 16/04/07

JUDGMENT DATE: 26 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 4; Rothman J at 5

DECISION: (a) leave to appeal granted and the appeal granted in part; (b) the sentence (other than on the revocation for breach of the good behaviour bond) imposed on the applicant by Morgan DCJ on 28 July 2006 (including the offence on the Form 1) be quashed and in lieu thereof the following sentence be imposed: (i) for the offence of supply prohibited drug, methylamphetamine, not less than indictable quantity (date of offence between 9 June 2005 and 16 August 2005) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) [including the offence of the Form 1 of possess prohibited drug, methylamphetamine (date of offence 25 August 2005) contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW)] the applicant be sentenced to 3 years' imprisonment consisting of a non-parole period of 18 months to commence on 16 November 2006 and expire on 15 May 2008 with a balance of term of 18 months to expire on 15 November 2009.

CATCHWORDS: CRIMINAL LAW - SENTENCE APPEAL - no error identifiable or manifest - commission of offence on conditional liberty - caution in application of statistics - not outside of range of sentence available given recalcitrance of offender - backdating to account for pre-sentence custody.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)

Markarian v R (2005) 79 ALJR 1048 R v Bardo, NSWCCA, unreported, 14 July 1992 CASES CITED: R v Clarke, unreported, NSWCCA 15 March 1990 R v Gip [2006] NSWCCA 115 R v Ponfield (1999) 48 NSWLR 327 Veen v R [No 2] (1988) 164 CLR 465