Collier v R [2012] NSWCCA 213

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Collier v R [2012] NSWCCA 213 Hearing dates: 7 August 2012 Decision date: 04 October 2012 Before: McClellan CJ at CL at [1] R A Hulme J at [51] Schmidt J at [63] Decision: 1. Grant leave to appeal. 2. Uphold the appeal and quash the sentence imposed in the District Court. 3. In relation to count 2 sentence the applicant to a non-parole period of 9 years commencing on 23 August 2008 and expiring on 22 August 2017 with an additional term of 3 years expiring on 22 August 2020. 4.In relation to count 1 and having regard to the matter on the Form 1 sentence the applicant to a non-parole period of 10 years and 6 months commencing on 23 August 2011 and expiring on 22 February 2022 with an additional term of 4 years and 6 months expiring on 22 August 2026. The aggregate non-parole period is accordingly 13 years and 6 months with an additional term of 4 years and 6 months. Catchwords: CRIMINAL LAW - appeal - sentence - where sentencing judge failed to impose a non-parole period in respect of count 1 - whether sentencing judge erred in consideration of the standard non-parole period - where sentencing judge had regard to the standard non-parole period as one of the matters to be considered - whether sentencing judge breached the rule in Pearce v R (1998) 194 CLR 610 - where sentencing judge first determined overall appropriate sentence before determining sentence for each count - Rule in Pearce v R breached - whether sentence is manifestly excessive - applicant resentenced - lesser sentence imposed. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Sentencing Act 1989 Cases Cited: Amacha v R; R v Amacha [2010] NSWCCA 180 KAF v R [2009] NSWCCA 184 KC v R [2009] NSWCCA 110 Leddin v R [2008] NSWCCA 242 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 R v Attallah [2005] NSWCCA 277 R v Clark [2009] NSWCCA 49 R v Close (1992) 31 NSWLR 743 R v Donovan (Court of Criminal Appeal, 9 September 1992, unreported) R v Dunn [2004] NSWCCA 346 R v Fidow [2004] NSWCCA 172 R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 R v Laalaa [2009] NSWCCA 250 R v Paxton [2011] NSWCCA 242 R v Radenkovic (Court of Criminal Appeal, 6 March 1990, unreported) R v Thomas (1992) 65 A Crim R 269 R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340 Russell v R [2010] NSWCCA 248 SGJ v R; KU v R [2008] NSWCCA 258 Smaragdis v R [2010] NSWCCA 276 Category: Principal judgment Parties: Maree Collier (Applicant) Crown Representation: Counsel: I McLachlan (Applicant) E Balodis (Crown) Solicitors: Michael Croke & Co (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/6354 Decision under appeal Date of Decision: 2010-04-15 00:00:00 Before: Black DCJ File Number(s): 2009/59403