BOWDEN v REGINA [2009] NSWCCA 45

New South Wales Court of Criminal Appeal

CITATION: BOWDEN v REGINA [2009] NSWCCA 45

HEARING DATE(S): Wednesday 19 November 2008

JUDGMENT DATE: 27 February 2009

JUDGMENT OF: Beazley JA at 1; Kirby J at 2; Hall J at 3

(1) Leave to appeal be granted. (2) The appeal be upheld. DECISION: (3) The sentences imposed in respect of Count 2, ongoing supply of prohibited drug (methylamphetamine) contrary to s.25A(1) of the Drug Misuse and Trafficking Act be set aside and the applicant be re-sentenced by this Court. (4) That in respect of Count 2, the applicant be sentenced to a non-parole period of one year to commence on 27 February 2008 and to expire on 26 February 2009 with a balance of term of one year and six months to commence on 27 February 2009 and to expire on 26 August 2010. (5) Pursuant to s.50(1) of the Crimes (Sentencing Procedure) Act, an order directing the release of the applicant on parole at the end of the non-parole period specified in order (4) above, namely, 26 February 2009. In accordance with the order proposed in paragraph [5) above, the applicant is to be released to parole forthwith.

CATCHWORDS: CRIMINAL LAW – appeal against severity of sentence – plea of guilty to two counts of supplying a prohibited drug and one count of ongoing supply of prohibited drug – grounds for interference – parity – whether error in lack of disparity between sentences of co-offenders – where significant disparity in circumstances of co-offenders – whether error in finding offence committed for financial gain was aggravating factor – where financial gain element of offence – whether error in finding offences aggravated by being part of planned or organised criminal activity – where no planning or organisation established beyond what is inherent to offence – errors established – appeal allowed and upheld – sentences set aside – applicant re-sentenced