R v STRAHAN [2003] NSWCCA 397

R v STRAHAN [2003] NSWCCA 397

The sentencing process miscarried because Barr J gave no reasons for failing to set a non-parole period and did not apply the required two-stage process before ordering periodic detention. Applying s 6(3) of the Criminal Appeal Act, the Court held that a lesser sentence was warranted because the three-year custodial term, if combined with a usual parole component, would be excessive against the five-year maximum for the offence. The Court therefore resentenced the applicant to three years' imprisonment with a non-parole period of two years and three months, backdated to reflect time already served.

Jurisdiction
Australia
Judgment Date
16 December 2003
Procedural Posture
Criminal Sentence Appeal / Application to Extend Time, Application for Leave to Appeal, and Appeal Against Sentence
Outcome
Time to appeal extended, leave to appeal granted, appeal allowed, original sentence quashed and applicant resentenced.
Legal Topics
['accessory After the Fact to Manslaughter' 'periodic Detention' 'non Parole Period' 'resentencing' 'extension of Time']
['criminal Law' 'sentencing' 'criminal Appeals'] ['accessory After the Fact to Manslaughter' 'periodic Detention' 'non Parole Period' 'resentencing' 'extension of Time']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application to Extend Time, Application for Leave to Appeal, and Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to give reasons for not setting a non-parole period.' 'Whether the sentencing judge failed to use the required two-stage process of first fixing the term of imprisonment and then considering periodic detention.' 'Whether, under s 6(3) of the Criminal Appeal Act, some other sentence was warranted in law and should have been passed.' "Whether the original sentence of three years' custody was excessive."]

Ratio Decidendi

The sentencing process miscarried because Barr J gave no reasons for failing to set a non-parole period and did not apply the required two-stage process before ordering periodic detention. Applying s 6(3) of the Criminal Appeal Act, the Court held that a lesser sentence was warranted because the three-year custodial term, if combined with a usual parole component, would be excessive against the five-year maximum for the offence. The Court therefore resentenced the applicant to three years' imprisonment with a non-parole period of two years and three months, backdated to reflect time already served.

Court Disposition

Time to appeal extended, leave to appeal granted, appeal allowed, original sentence quashed and applicant resentenced.

Orders

  • ['Extend the time within which to appeal.' 'Grant leave to appeal.' 'Allow the appeal.' 'Quash the sentence imposed by Barr J.' 'Sentence the Applicant to imprisonment for 3 years commencing on 10 June 2001 and concluding on 9 June 2004.' 'Fix a non-parole period of 2 years and 3 months commencing on 10 June 2001...