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Robson-Bolan v The Queen [2022] NSWCCA 1

The offender was sentenced following a plea of guilty to 1 count of attempting to import a marketable quantity of a border controlled drug. The original sentence imposed 3 years and 6 months imprisonment with an 18 month non-parole period. The offender was sentenced for additional state supply offences. Additional offences were taken into account under s 16BA. The offence related to 300g of pure cocaine. The offender appealed on the basis that the sentencing judge erred in his application of the totality principle and the sentence imposed was manifestly excessive.  

Totality: The State offence was wholly accumulated on the 2 year and 6 month Commonwealth attempt to import offence. The sentencing judge used the term ‘notional accumulation’. The phrase is misplaced. There was nothing notional about the accumulation in the sentences imposed. The sentences were wholly and actually accumulated. There were a number of features which militated in favour of a degree of concurrency including that the offences were closely linked in fact, were essentially part of a single episode of criminality and were part of the same small enterprise operated. Whilst the sentencing judge was not obliged to provide any formulaic detail, it was not discernible from the reasons as a whole and the sentence imposed that the totality principle was applied as part of the instinctive synthesis involved in the sentencing process.  

Leave to appeal granted. Appeal allowed. Sentences quashed and offender sentenced to 2 years and 9 months imprisonment, to be released on recognisance after 2 years.
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