SIMPSON, Danielle v R [2007] NSWCCA 348

SIMPSON, Danielle v R [2007] NSWCCA 348

Although the sentencing judge was entitled to take into account a limited degree of planning, the sentence was excessive because the judge's approach to rehabilitation and re-offending proceeded on a flawed apprehension of the evidence concerning the applicant's access to Buprenorphine and relapse into heroin use. Having regard to R v Henry, the applicant's completed parole, period without offending, prior legitimate use of Buprenorphine, and the continuing importance of rehabilitation, balanced against her prior record and absence of a guilty plea, a sentence in the four to five year range was appropriate.

Jurisdiction
Australia
Judgment Date
14 December 2007
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the NSW Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced.
Legal Topics
['armed Robbery' 'henry Guideline' 'rehabilitation' 'aggravating Factors' 'prior Convictions' 'manifest Excess']
['criminal Law' 'sentencing'] ['armed Robbery' 'henry Guideline' 'rehabilitation' 'aggravating Factors' 'prior Convictions' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the NSW Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding as an aggravating factor that the offence involved planning.' "Whether the sentencing judge erred in his treatment or approach to the applicant's prospects for rehabilitation having regard to her criminal history." 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

Although the sentencing judge was entitled to take into account a limited degree of planning, the sentence was excessive because the judge's approach to rehabilitation and re-offending proceeded on a flawed apprehension of the evidence concerning the applicant's access to Buprenorphine and relapse into heroin use. Having regard to R v Henry, the applicant's completed parole, period without offending, prior legitimate use of Buprenorphine, and the continuing importance of rehabilitation, balanced against her prior record and absence of a guilty plea, a sentence in the four to five year range was appropriate.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' 'Sentence quashed and in lieu thereof sentence the applicant to imprisonment for a non parole period of three years commencing on 18 March 2006 and expiring on 17 March 2009 with a balance of term of one year six months to commence on 18 March 2009 and expire on 17...