See full judgment: Austlii.
The offender was sentenced following conviction for 1 count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to s 11.1 and s 307.5 of the Commonwealth Criminal Code. Offending related to 2.365 kilograms of pure cocaine. Original sentenced imposed 9 years of imprisonment with a non-parole period of 5 years and 3 months. Offender appeals on the grounds that the sentence imposed was manifestly excessive, that the sentence infringed the parity principle, and that the learned sentencing judge erred in finding that the co‑offender took guidance from the appellant.
Manifest Excess: What distinguishes the present case others is offender’s very serious health condition, their reduced life expectancy and the additional burden that their condition will have for their period of imprisonment. While matters personal to an offender are almost always subsidiary sentencing considerations for offences of drug trafficking, offender’s medical condition may properly be described as an exceptional circumstance warranting a degree of mercy. That condition could not, of course, justify a sentence that did not reflect the objective seriousness of the offence, but it did require that the term of imprisonment to be imposed recognise the real and significant impact that a term of imprisonment would have on offender when compared with others. In all of the circumstances the sentence did not reflect those exceptional circumstances and was, therefore, unreasonable or plainly unjust.
Parity: There is an unjustifiable disparity between the sentence imposed on offender, on the one hand, and Mr Natale, on the other. While it is true that Mr Natale was a youthful offender and a sentence of imprisonment would adversely affect his mother, there was no evidence, and no justification, for the sentencing judge to find that Mr Natale was somehow more vulnerable or that he took guidance from offender. In any event, offender’s very serious medical condition comprehensively outweighed the mitigation available to Mr Natale by reason of the personal factors that applied to him. The appellant suffers from a chronic and deteriorating condition that will substantially curtail his life expectancy. He faces the prospect that a very significant portion of his remaining life, if not all of it, will be spent in prison. Moreover, the time that he spends in prison will be much harder for him than for other prisoners who are not afflicted by an illness of the kind suffered by offender. Contrary to what may be inferred as to the learned sentencing judge’s assessment of their relative mitigatory significance, the impact of offender’s cystic fibrosis carried significantly greater weight than Mr Natale’s youth and the loss of his father. Given that their objective criminality was the same, the appellant’s unusual medical condition justified a sentence that was less than that of Mr Natale.
Leave to appeal granted. Appeal allowed. Offender resentenced to 7 years of imprisonment with a non-parole period of 3 years and 3 months.
