O’Grady v R [2015] NSWCCA 168

O’Grady v R [2015] NSWCCA 168

Although the sentencing judge made a Muldrock error by applying the former R v Way standard non-parole period methodology, the reasons for the delay were explained and the interests of justice supported granting an extension of time and leave. On re-exercising the sentencing discretion, the Court concluded that the objective seriousness and subjective circumstances warranted no lesser sentence than the 9 year sentence with a 5 year 6 month non-parole period imposed below; because no warning of a possible increase had been given, the sentence was not increased and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
03 July 2015
Procedural Posture
Criminal Appeal Against Sentence / Application for Extension of Time, Application for Leave to Appeal and Appeal Heard Concurrently in the Court of Criminal Appeal After High Court Remittal
Outcome
Extension of time granted; leave to appeal granted; appeal dismissed.
Legal Topics
['muldrock Error' 'standard Non Parole Period' 'extension of Time to Appeal' 'leave to Appeal Against Sentence' 're Exercise of Sentencing Discretion' 'no Lesser Sentence Warranted in Law']
['criminal Law' 'sentencing' 'criminal Appeals'] ['muldrock Error' 'standard Non Parole Period' 'extension of Time to Appeal' 'leave to Appeal Against Sentence' 're Exercise of Sentencing Discretion' 'no Lesser Sentence Warranted in Law']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Extension of Time, Application for Leave to Appeal and Appeal Heard Concurrently in the Court of Criminal Appeal After High Court Remittal

Legal Issues

  1. 1 ['Whether an extension of time to apply for leave to appeal should be granted.' 'Whether the sentencing judge erred by applying the standard non-parole period approach in R v Way, contrary to Muldrock v The Queen.' 'Whether, after error was established and leave granted, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.' 'Whether the Court could increase the sentence where no warning of that possibility had been given.']

Ratio Decidendi

Although the sentencing judge made a Muldrock error by applying the former R v Way standard non-parole period methodology, the reasons for the delay were explained and the interests of justice supported granting an extension of time and leave. On re-exercising the sentencing discretion, the Court concluded that the objective seriousness and subjective circumstances warranted no lesser sentence than the 9 year sentence with a 5 year 6 month non-parole period imposed below; because no warning of a possible increase had been given, the sentence was not increased and the appeal was dismissed.

Court Disposition

Extension of time granted; leave to appeal granted; appeal dismissed.

Orders

  • ['Extension of time granted' 'Leave to appeal granted' 'Appeal dismissed']