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Geraghty v R [2023] NSWCCA 47

The offender was sentenced following conviction for 1 count of conspiring to import a commercial quantity of a border-controlled drug, contrary to ss 11.5(1) and 307.1 of the Commonwealth Criminal Code. Offending related to 1.11 tonnes of pure cocaine. Offender appealed on the ground that the sentence was manifestly excessive.

Physical Condition: Offender appealed on the ground that the non-parole period was manifestly excessive. Offender submitted that their age and physical health ‘should have led’ the judge ‘to impose a lesser non-parole period’. While the offender had health issues, their subjective case in relation to them was modest. In connection with offender’s degenerative left hip it was not contended that any treatment that the offender might require in the future cannot be provided by Justice Health. On the other hand, there can be little doubt that offender’s ill-health will render their conditions of imprisonment more onerous than if were they in good health.

Age: The fact that the offender’s non-parole period extended beyond the date of their statistical life expectancy is not, of itself, suggestive of an unreasonable or plainly unjust result. Nor does Neale dictate a contrary result. It is of course a ‘weighty consideration’ that the offender is likely to spend the whole, or a very substantial portion, of the remainder of their life in custody. Nevertheless, the extent to which leniency is called for depends upon the circumstances of the case. Age is but one consideration in the sentencing process and cannot justify the imposition of an erroneously lenient sentence. Inevitably there will be cases where, having regard to the objective seriousness of the offending (and other circumstances including any subjective case put), and the age of the offender, that the practical effect of the sentence imposed will mean that the offender is likely to die in gaol. It was plainly open to the sentencing judge to conclude that this is such a case, notwithstanding the offender’s subjective case concerning their physical health and his age.

Leave to appeal granted. Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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