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Stemler v The Queen [2017] NSWCCA 320

appeal against sentence — attempting to possess a marketable quantity of an unlawfully imported border control drug contrary to s 307.6 of Commonwealth Criminal Code — state offence — original sentence imposed 7 years and 9 months’ imprisonment with 5 year and 3 month non-parole period — original sentence arrived at after head sentence corrected and non-parole period left unchanged — non-parole period subsequently amended — antecedents — s 16A(2)(m) — sentencing judge not in error by denying offender leniency because of offender’s previous assault conviction when sentencing judge’s comments read contextually — instinctive synthesis — in exchange between sentencing judge and counsel, sentencing judge indicated that he would “find special circumstances” — no indication in sentencing judge’s reasons that sentencing judge employed two-step process by determining assumed starting point then identifying special circumstances — Court will not ordinarily find error on basis of exchanges between bench and counsel — guilty plea — s 16A(2)(g) — that sentence imposed has ratio of 67% between non-parole period and head sentence does not demonstrate error — that head sentence corrected by reduction of 23% whilst non-parole period reduced by only 8.7% does not demonstrate error — sentencing not to be approached by equation — sentencing judge in error due to lack of transparency in process by which sentencing judge arrived at non-parole period — offender resentenced to 7 years and 9 months’ imprisonment with 5 year non-parole period
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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