High Court of Australia

Markarian v The Queen [2005] HCA 25

228 CLR 357; 79 ALJR 1048; 215 ALR 213

18 May 2005

Case Number: S600/2003

Before

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan JJ

Catchwords

Criminal law – Sentence - Principles - Drug offence - Appellant acted as driver for heroin dealer - Appellant pleaded guilty and asked that four other offences be taken into account by sentencing judge - Whether Court of Criminal Appeal adopted impermissible approach to sentencing by means of staged approach - Whether staged approach to be preferred to instinctive synthesis of sentencer - Relevance of maximum available sentence - Relevance of quantity of drug.

Criminal law – Appeal - Prosecution appeal against sentence - Court of Criminal Appeal increased sentence from 2 years and 6 months to 8 years - Whether Court of Criminal Appeal was wrong to find that the original sentence was manifestly inadequate - Whether re-sentencing discretion miscarried.

Criminal law – Sentence - Re-sentencing - Further offences - Additional discrete sentence added to head sentence for further offences disclosed by offender - Whether such approach a breach of totality principle.

Criminal law – Sentence - Principles - Failure by trial judge and Court of Criminal Appeal to consider an obligatory requirement of sentencing statute in determining appellant's sentence - Whether sentencing discretion of trial judge and Court of Criminal Appeal miscarried because of such omission.

Words and phrases – "staged approach", "two-stage approach", "instinctive synthesis".

Crimes (Sentencing Procedure) Act 1999 (NSW) – Div 3 Pt 3, s 21A, s 31, s 32, s 34(1), s 101A.

Criminal Appeal Act 1912 (NSW) – s 5D.

Drug Misuse and Trafficking Act 1985 (NSW) – s 33(2).

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