Deakin v R [2014] NSWCCA 121

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Deakin v R [2014] NSWCCA 121 Hearing dates: 1 April 2014 Decision date: 04 July 2014 Before: Hoeben CJ at CL at [1] Adams J at [2] Hall J at [3] Decision: (1)Leave to appeal against the sentences imposed on the applicant by the District Court on 26 June 2012 be granted. (2)Appeal allowed. (3)Quash the sentences imposed by the District Court on 26 June 2012. (4)In lieu thereof, the applicant be re-sentenced as follows: (a)In respect of Count 1, to a term of imprisonment comprising a non-parole period of 6 years 9 months to commence on 28 March 2010 and to expire on 27 December 2016 with a balance of term of 3 years 9 months to expire on 27 September 2020. (b)In respect of Count 2, to a fixed term of imprisonment of 12 months, commencing on 28 March 2010 and to expire on 27 March 2011. (5)The earliest date upon which the applicant will be eligible for release to parole is 28 December 2016. Catchwords: CRIMINAL LAW - sentence appeal - one count supply a large commercial quantity of prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act - one count participate in a criminal group contrary to s 93IK(1) - whether sentencing judge erred in commencing the sentence only two months before the completion of the earlier non-parole period being served - whether the sentencing judge made inadequate allowance for the finding of special circumstances when setting the non-parole period on Count 1 - whether the sentencing judge erred in selecting the commencement date for the sentences imposed - leave to appeal granted - appeal allowed - applicant re-sentenced Legislation Cited: Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Cases Cited: Choi v The Queen [2007] NSWCCA 150 Franklin v R [2013] NSWCCA 122 Johnson v The Queen (2004) 78 ALJR 616 Kalache v R [2011] NSWCCA 210 LG v The Queen [2012] NSWCCA 249 Mill v The Queen (1988) 166 CLR 59 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v Close (1992) 31 NSWLR 743 R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 R v MMK (2006) 164 A Crim R 481 R v Scott [2005] NSWCCA 152 Category: Principal judgment Parties: Andrew Benjamin Deakin (Applicant) Crown (Respondent) Representation: Counsel: T Game SC; D Barrow (Applicant) S Herbert (Respondent) Solicitors: The Law Practice (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/7695 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-06-26 00:00:00 Before: Tupman DCJ File Number(s): 2009/7695