Des Rosiers v R [2016] NSWCCA 196

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Des Rosiers v R [2016] NSWCCA 196 Hearing dates: 12 August 2016 Decision date: 02 September 2016 Before: Macfarlan JA at [1]; Hall J at [36]; Bellew J at [37] Decision: (1) Appeal allowed. (2) Quash the sentence imposed by the Court of Criminal Appeal on 10 February 2006 in respect of Count 1. (3) For the offence of Supply a Large Commercial Quantity of LSD (Count 1), and taking into account the offences on the Form 1, sentence the appellant to a term of imprisonment of 14 years commencing on 20 April 2004 and expiring on 19 April 2018, with a non-parole period of 10 years and 6 months commencing on 20 April 2004 and expiring on 19 October 2014. (4) Note that the sentences imposed by this Court in relation to Counts 2, 3 and 4 on 10 February 2006 expired prior to the expiration of the above sentence in relation to Count 1. As a result, the appellant became eligible for release to parole on expiration of the non-parole period in relation to his Count 1 sentence, being 19 October 2014. Catchwords: CRIMINAL LAW – sentence appeal – serious drug offence – matter referred to Court of Criminal Appeal to be dealt with as an appeal – alleged Muldrock and Kentwell errors in previous appeal decision – proper approach to re-sentencing – appellant had already been released on parole – rehabilitation demonstrated Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 78(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2) Criminal Appeal Act 1912 (NSW) Cases Cited: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Betts v The Queen [2016] HCA 25; 90 ALJR 758 Buttrose v Attorney General (NSW) [2015] NSWCA 221; 324 ALR 562 Hili v The Queen [2010] HCA 45; 242 CLR 520 Kentwell v R (No 2) [2015] NSWCCA 96 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Louizos v The Queen [2014] NSWCCA 242 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Pham [2015] HCA 39; 90 ALJR 13 Thammavongsa v R [2015] NSWCCA 107 Category: Principal judgment Parties: Henry Edgar Des Rosiers (Appellant) Regina (Respondent) Representation: Counsel: T A Game / J L Roy (Appellant) H Baker (Respondent)