West, Trent v R [2017] NSWCCA 271

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: West, Trent v R [2017] NSWCCA 271 Hearing dates: 8 November 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Before: Gleeson JA at [1]; Rothman J at [4]; Hamill J at [74] Decision: (1) Leave to appeal against sentence be granted;

(2) Appeal be allowed;

(3) The sentence imposed upon Trent West on 6 March 2017 by the District Court be quashed and in lieu thereof the Applicant be sentenced to imprisonment for a non-parole term of 8 months, commencing 2 March 2017 and a remainder of term of a further 10 months, concluding 1 September 2018;

(4) Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, the Court directs that the Applicant be released on parole forthwith;

(5) The conditions of parole shall be governed by the provisions of the Crimes (Administration of Sentences) Act 1999 to which s 51(1AA) of the Crimes (Sentencing Procedure) Act refers. Catchwords: CRIMINAL APPEAL – submission that sentencing judge confine subjective circumstances to the finding on non-parole period rejected – acceptance that sentencing judge erroneously constrained sentencing discretion in relation to the imposition of full-time custodial sentence – effect of policy decisions and prior comments of Court requiring "exceptional circumstances" on statutory regime, if any, discussed – exceptional circumstances probably shown – appeal allowed – applicant's immediate release ordered. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson v R (2004) 78 ALJR 616; [2004] HCA 15 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 R v Brown [2013] NSWCCA 178 R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) R v Gip; R v Ly (2006) 161 A Crim R 173; [2006] NSWCCA 115 Robertson v R [2017] NSWCCA 205 Vaiusu v R [2017] NSWCCA 71 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Trent West (Applicant) Regina (Respondent Crown) Representation: Counsel: Mr G James QC/Mr E James (Applicant) Ms B Baker (Respondent Crown)