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Judgment handed down in Fernando v The Queen
18 August 2017
The Court of Appeal (Justice Ashley, Justice Redlich and Justice Tate) today allowed an appeal against sentence on the grounds that the sentence was manifestly excessive and that the sentencing judge had committed a specific error.
Mr Fernando was sentenced to seven years and eight months’ imprisonment with a non-parole period of three years and 10 months, after being found guilty by a jury of one charge of trafficking in a commercial quantity of methylamphetamine and three charges of trafficking in other drugs of dependence. The jury was satisfied that he was in possession of the drugs for the purposes of trafficking after police discovered him leaving premises in which a camera bag containing the drugs was found. The quantity of methylamphetamine only marginally exceeded the threshold for a ‘commercial quantity’ and he was sentenced on the basis he was not part of an ongoing operation.
The Court of Appeal held that the sentence imposed was manifestly excessive for offending at the lower end of the range of objective seriousness. This was the case even though Mr Fernando pleaded not guilty and had relevant prior convictions for similar offending. The Court also held that the sentencing judge had erred in mistakenly forming the view that earlier decisions of this Court applied when they did not.
Between the time of sentencing and the appeal, the Court delivered a judgment calling for an uplift in sentencing standards for serious examples of trafficking in a commercial quantity of a drug of dependence.
Justice Redlich today stated that such an uplift will mostly affect offences in the upper category of seriousness, with diminished effect in the middle and lower categories of seriousness. In this way, an uplift in sentencing standards will increase the spread of sentences across the statistical range.
Justice Ashley took the view that, independently of the question of uplift, a different sentence should be imposed. Justice Tate also expressed the view that, in the circumstances, it was necessary to impose a new sentence.
Mr Fernando was resentenced to a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years.