Aiken v R [2011] NSWCCA 208

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Aiken v R [2011] NSWCCA 208 Hearing dates: 5 August 2011 Decision date: 09 September 2011 Before: McClellan CJ at CL at [1] Simpson J at [22] Fullerton J at [23] Decision: 1. Grant leave to appeal. 2. Uphold the appeal and quash the sentences imposed in the District Court. 3. Sentence the applicant as follows: Count 7: a fixed term of 6 months commencing on 16 October 2008 and expiring on 15 April 2009. Count 6: a fixed term of 12 months commencing on 16 October 2008 and expiring on 15 October 2009. Count 1: a fixed term of 2 years 9 months commencing on 16 January 2009 and expiring on 15 October 2011. Count 2: a fixed term of 3 years commencing on 16 April 2009 and expiring on 15 April 2012. Count 5: a fixed term of 2 years 3 months commencing on 16 July 2010 and expiring on 15 October 2012. Count 3: having regard to the matters on the Form 1 a non-parole period of 3 years commencing on 16 October 2010 and expiring on 15 October 2013 with an additional term of 2 years expiring on 15 October 2015. Count 8: a fixed term of 12 months commencing on 16 October 2010 and expiring on 15 October 2011. Count 9: a fixed term of 6 months commencing on 16 October 2010 and expiring on 15 April 2011. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - drug supply offences - Form 1 offence possession of mobile telephone whilst in custody without reasonable excuse - offences committed whilst applicant serving prison sentence - plea of guilty - effective sentence backdated to commence at expiry of parole period of earlier sentence - no order for revocation of parole made - period of custody solely referrable to present offences - error established - inconsistency between individual sentences imposed - relative quantities involved in each count - sentences for affected individual counts wholly subsumed by other sentences - adjustments to individual sentences - parity - intervention of the Court not justified - leave granted - sentences quashed - applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Summary Offences Act 1988 (NSW) Cases Cited: Callaghan v The Queen (2006) 160 A Crim R 145 Postiglione v The Queen (1997) 189 CLR 2 R v Ellmore [2002] NSWCCA 242 R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 Category: Principal judgment Parties: Luke Matthew Aiken (Applicant) Regina Representation: Counsel S Buchen (Applicant) S Bowers (Crown) Solicitors The Law Practice (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/2592 Decision under appeal Citation: N/A Date of Decision: 2009-12-14 00:00:00 Before: O'Connor DCJ File Number(s): 2009/2592