AGUIRRE v R [2010] NSWCCA 115

AGUIRRE v R [2010] NSWCCA 115

The sentencing judge erred by imposing a fixed term for count 1 because an offence under s 154C(2) of the Crimes Act is in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act and required a non-parole period. That error was corrected by substituting the sentence the judge had indicated would...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 June 2010
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From District Court Sentences Imposed After Pleas of Guilty
Outcome
Leave to appeal against sentence granted; appeal allowed only as to count 1; sentence on count 1 quashed and substituted; otherwise leave granted but appeal against sentence dismissed.
Legal Topics
['non Parole Period' 'standard Non Parole Period' 'aggravating Factors' 'victim Impact Statement' 'prior Convictions' 'gratuitous Cruelty' 'offence Committed in the Home of the Victim' 'youth and Immaturity of Offender' 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Appeal'] ['non Parole Period' 'standard Non Parole Period' 'aggravating Factors' 'victim Impact Statement' 'prior Convictions' 'gratuitous Cruelty' 'offence Committed in the Home of the Victim' 'youth and Immaturity of Offender' 'manifest Excess']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From District Court Sentences Imposed After Pleas of Guilty

Legal Issues

  1. 1 ['Whether the sentencing judge erred by imposing a fixed term for an offence under s 154C(2) of the Crimes Act without setting a non-parole period.' 'Whether the sentencing judge erred by taking into account irrelevant matters concerning restitution and community costs.' 'Whether the Form 1 offence was taken into account in sentencing for count 3.' "Whether the sentencing judge erred in findings of aggravation concerning prior convictions, commission in the victim's home, gratuitous cruelty, substantial injury or emotional harm, and conditional liberty." 'Whether the sentencing judge erred in findings about remorse, rehabilitation, bail status, youth and immaturity.' 'Whether the sentences were manifestly excessive, whether the offences were above mid-range objective seriousness, and whether general deterrence was given disproportionate weight.']

Ratio Decidendi

The sentencing judge erred by imposing a fixed term for count 1 because an offence under s 154C(2) of the Crimes Act is in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act and required a non-parole period. That error was corrected by substituting the sentence the judge had indicated would have been imposed: a non-parole period of four years and a balance of term of two years from the same commencement date. The remaining appeal grounds failed because the challenged aggravating and subjective findings were either open on the evidence or not shown to involve error, the offences were properly assessed as above the middle of the range of objective seriousness,...

Court Disposition

Leave to appeal against sentence granted; appeal allowed only as to count 1; sentence on count 1 quashed and substituted; otherwise leave granted but appeal against sentence dismissed.

Orders

  • ['As to the sentence imposed on count 1, grant leave to appeal against the sentence.' 'Allow appeal against sentence.' 'Quash the sentence imposed on count 1 and in lieu thereof impose a sentence of a non-parole period of four years commencing on 24 June 2008 and a balance of the term of two years.' 'Otherwise,...