Elliott v R [2018] NSWCCA 69

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elliott v R [2018] NSWCCA 69 Hearing dates: 9 April 2018 Date of orders: 13 April 2018 Decision date: 13 April 2018 Before: Leeming JA at [1]; Fullerton J at [2]; McCallum J at [46] Decision: 1. Grant leave to appeal against sentence.

2. Appeal allowed.

3. Quash the sentences imposed by North DCJ on 22 June 2017 and in lieu thereof, impose the following sentences:

On Count 2, the charge of supply of 7.28 grams of methamphetamine, a fixed term of imprisonment of 18 months commencing 6 July 2016 and expiring on 5 January 2018.

On Count 1, the charge of ongoing supply, a non-parole period of 18 months commencing on 6 November 2016 and expiring on 5 May 2018 with a parole period of 12 months expiring on 5 May 2019.

The overall sentence therefore is 2 years and 10 months. Catchwords: CRIMINAL LAW – appeal against sentence – whether the applicant acted "in company" in supplying prohibited drugs – whether the degree of planning and organisation in the supply of prohibited drugs permitted a finding that the applicant's offending was aggravated – whether the sentencing judge denied the applicant procedural fairness by finding factors of aggravation without notice to the applicant Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n) Criminal Appeal Act 1912 (NSW), s 5(1)(c) Criminal Procedure Act 1986 (NSW), s 166 Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1), s 36Y(1)(a) Cases Cited: Dang v R [2014] NSWCCA 47 Fahs v R [2007] NSWCCA 26 Gore v R [2010 NSWCCA 330; 208 A Crim R 353 Hewitt v R [2007] NSWCCA 353; 180 A Crim R 306 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Ng v R [2011] NSWCCA 227 Prculovski v R [2010] NSWCCA 274 R v Wang; R v Roizman [2013] NSWCCA 2 Thomson v R [2014] NSWCCA 88 Weir v R [2011] NSWCCA 123 White v R [2016] NSWCCA 190 Wills v R [2014] NSWCCA 253 Category: Principal judgment Parties: Shane Elliott (Applicant) The Crown (Respondent) Representation: Counsel: J Paingakulam (Applicant) H Roberts (Crown)