THIS ISSUE: Crimes (Sentencing Procedure) Act, s21A(2)(i)- Mansour v R [2011] NSWCCA 28
The applicant in Mansour v R [2011] NSWCCA 28 pleaded guilty to six drug supply offences including supplying cocaine on an ongoing basis under s25A(1) of the Drug Misuse and Trafficking Act 1985. He was sentenced to an aggregate term of imprisonment of nine years with a non-parole period of six years three months. The applicant appealed against the sentence.
The Court allowed the appeal. The applicant was resentenced on appeal for the ongoing drug offence. In allowing the appeal it was found the Judge erred in taking into account, as an aggravating factor under s21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999, that the offence was committed without regard to public safety.
Section 21A(2) states that where a factor is an element of the offence it should not be taken into account as an aggravating factor; Elyard v R [2006] NSWCCA 43, Ward v R (2007) 168 A Crim R 545. Similarly, a factor which is an inherent characteristic of that type of offence, cannot be taken into account as an aggravating factor, unless its nature or extent in the case in question is unusual or “exceeds the norm”: R v Yildiz (2006) 160 A Crim R 218.
It was found that failure to take into account public safety is an inherent characteristic of an offence of ongoing drug supply and therefore should not have been considered by the Judge as an aggravating factor. There was nothing on the facts or in the Judge’s remarks that suggest the nature of the disregard for public safety was so unusual as to alter such a classification.
