Australia, July 7 -- New South Wales Land and Environment Court issued text of the following judgement on June 6:

1. STERN JA: I agree with McNaughton J.

2. HAMILL J: I agree with the orders proposed by McNaughton J and with her Honour's reasons. I would only add that, in terms of transparency, there is a distinct advantage in back-dating a sentence to take into account periods of pre-sentence "quasi-custody". However, as McNaughton J demonstrates by reference to several authorities, there is no obligation on a sentencing Judge to adopt that approach. In the present case, Judge O'Rourke SC was plainly aware of the issue and made it clear that she had considered the period on bail, and the onerous conditions, in determining the appropriate sentence. The case of R v Quinlin [2021] NSWCCA 284, upon which the applicant placed particular reliance, demonstrates that quasi-custody may be established by onerous bail conditions in the nature of home detention or a strict curfew, and that one way of recognising this is by back-dating the sentence by a stated proportion of the period during which an offender was subject to such conditions. However, the back-date afforded to the respondent to that prosecution appeal was affected by his isolation from his family and mental health issues, and Price J observed at [99] that the back-date of six months "might be regarded as generous".

3. McNAUGHTON J: The applicant, Oktay Testici, is a 46 year old man who seeks leave to appeal against the sentence imposed upon him on 19 March 2024 at the Downing Centre District Court by her Honour Judge O'Rourke SC ("the sentencing judge"). He was sentenced, having pleaded guilty, for offences committed in 2021, being one count of supply commercial quantity of prohibited drug, one count of possess prohibited weapon, and one count of supply indictable quantity of prohibited drug. Additional matters were taken into account on a Form 1.

4. The applicant received an aggregate sentence of 3 years and 2 months' imprisonment, with a non-parole period of 20 months commencing on 10 March 2024. The applicant will be eligible for parole on 9 November 2025, and the sentence will expire on 9 May 2027.

5. The applicant relies on two grounds of appeal:

Ground 1: The sentencing judge erred in her approach to pre-sentence custody by:

a. not providing reasons for how onerous bail conditions were taken into account, and/or

b. not backdating the sentence to account for pre-sentence quasi custody.

Ground 2: The sentence imposed was manifestly excessive.

6. The applicant entered pleas of guilty to the offences at the Downing Centre Local Court on 24 October 2023, entitling him to a 25% discount (s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act")). In relation to the supply indictable quantity of prohibited drug offence, a further three matters were taken into account on a Form 1, namely: possess ammunition without holding a licence, permit or authority; deal with property reasonably suspected of being the proceeds of crime that is less than $100,000; and supply prohibited drug.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1973d3a5e2039077d4545238)

Disclaimer: Curated by HT Syndication.