Hanley v R [2018] NSWCCA 262

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hanley v R [2018] NSWCCA 262 Hearing dates: 10 September 2018 Date of orders: 26 November 2018 Decision date: 26 November 2018 Before: Basten JA at [1]; McCallum J at [2]; Bellew J at [8] Decision: 1. Leave to appeal granted.

2. Appeal against sentence allowed.

3. Set aside the aggregate sentence imposed upon the applicant in the District Court.

4. In lieu thereof impose an aggregate sentence of 4 years imprisonment commencing on 12 May 2017 and expiring on 11 May 2021, with a non-parole period of 2 years, commencing on 12 May 2017 and expiring on 11 May 2019.

5. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) indicate to the applicant, and record, that an aggregate sentence is imposed and that:

(a) the sentence that would have been imposed in respect of count 2 is 1 year and 6 months imprisonment, with a non-parole period of 9 months imprisonment;

(b) the sentence that would have been imposed in respect of count 5 is 2 years and 8 months imprisonment, with a non-parole period of 1 year and 4 months imprisonment;

(c) the sentence that would have been imposed in respect of the count in the ex-officio indictment is 3 years and 4 months imprisonment, with a non-parole period of 1 year and 8 months imprisonment.

6. The earliest date on which the applicant is eligible for release on parole is 11 May 2019. Catchwords: CRIMINAL LAW – appeal – sentence – offences of drug supply – principle that trafficking in illicit drugs requires a gaol sentence absent exceptional circumstances –principle accepted at the time of sentence but since abandoned –– error established – serious offending – strong subjective case characterised by significant efforts towards rehabilitation before and after entering custody – applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Dayment v R [2018] NSWCCA 132 Parente v R [2017] NSWCCA 284 R v Clark (Court of Criminal Appeal NSW, 15 March 1990, unreported) Robertson v R [2017] NSWCCA 205 Category: Principal judgment Parties: Joshua Lee Hanley – Applicant Regina – Respondent Representation: Counsel: P Boulten SC – Applicant B Hatfield – Respondent