Bejanov v R [2013] NSWCCA 207

Bejanov v R [2013] NSWCCA 207

The sentence appeal succeeded because the sentencing judge materially erred in calculating the discounted sentence and non-parole period for sequence 1, which required consequential changes to related commencement dates, and because sequence 17 was wrongly made wholly cumulative on sequence 16 despite substantial evidential overlap concerning the same firearm. Although sequence 17 was stern, it was not manifestly excessive. On resentencing, a lesser total sentence was warranted, including because the applicant's serious illness made custody more onerous and justified special circumstances, while still requiring substantial imprisonment for serious firearms offending.

Jurisdiction
Australia
Judgment Date
09 September 2013
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Resentencing After Sentence Appeal
Outcome
Leave to appeal granted; appeal allowed; sentences for sequences 1, 9, 13 and 17 quashed; applicant resentenced.
Legal Topics
['firearms Offences' 'weapons Offences' 'sentence Appeal' 'mathematical Error in Sentence Calculation' 'accumulation and Concurrency' 'manifest Excess' 'ill Health in Custody' 'form 1 Offences']
['criminal Law' 'sentencing'] ['firearms Offences' 'weapons Offences' 'sentence Appeal' 'mathematical Error in Sentence Calculation' 'accumulation and Concurrency' 'manifest Excess' 'ill Health in Custody' 'form 1 Offences']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Resentencing After Sentence Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge made a mathematical error in applying the 25 per cent discount for the guilty plea on sequence 1 and in calculating the non-parole period.' 'Whether the commencement dates for sentences on sequences 9, 13 and 17 required consequential adjustment.' 'Whether it was erroneous for the sentence for sequence 17 to be entirely accumulated on the sentence for sequence 16 where both related to the same firearm.' 'Whether the sentence for sequence 17 was manifestly excessive.' "Whether, on resentencing, the applicant's illness and custody conditions warranted a lesser total sentence and non-parole period."]

Ratio Decidendi

The sentence appeal succeeded because the sentencing judge materially erred in calculating the discounted sentence and non-parole period for sequence 1, which required consequential changes to related commencement dates, and because sequence 17 was wrongly made wholly cumulative on sequence 16 despite substantial evidential overlap concerning the same firearm. Although sequence 17 was stern, it was not manifestly excessive. On resentencing, a lesser total sentence was warranted, including because the applicant's serious illness made custody more onerous and justified special circumstances, while still requiring substantial imprisonment for serious firearms offending.

Court Disposition

Leave to appeal granted; appeal allowed; sentences for sequences 1, 9, 13 and 17 quashed; applicant resentenced.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentences with regard to sequences 1, 9, 13, and 17 quashed.' 'With regard to sequence 1, and taking the matters on the Form 1 into account, the applicant is sentenced to imprisonment comprising a non-parole period of 3 years 1 month and a balance of the term of the...