Apps v R [2006] NSWCCA 290

Apps v R [2006] NSWCCA 290

The sentencing judge made errors in treating the intention to kill alone as placing the offence above the mid-range, failed to consider causally related mental disorder as mitigating moral culpability and affecting general deterrence, and erred by treating the Form 1 offence as deserving a separate penalty. These errors led to a sentence that was manifestly excessive. The appeal was allowed and a new sentence imposed, giving proper weight to the objective seriousness (found to be at mid-range), mitigation from mental disorder, and correct treatment of the Form 1 offence.

Jurisdiction
Australia
Judgment Date
11 September 2006
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal allowed. Sentence quashed. Leave to appeal granted. Applicant resentenced.
Legal Topics
['sentencing' 'murder' 'plea of Guilty' 'mental Illness and Sentencing' 'sentencing Procedure' 'objective Seriousness' 'form 1 Offences' 'general Deterrence' 'specific Deterrence' 'community Protection' 'manifest Excess']
['criminal Law'] ['sentencing' 'murder' 'plea of Guilty' 'mental Illness and Sentencing' 'sentencing Procedure' 'objective Seriousness' 'form 1 Offences' 'general Deterrence' 'specific Deterrence' 'community Protection' 'manifest Excess']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of the offence.' "Whether sufficient regard was had to the applicant's mental disability in sentencing." 'Whether the assessment of future risk posed by the applicant was in error.' 'Whether the allowance made for the Form 1 offence was correct or involved error.']

Ratio Decidendi

The sentencing judge made errors in treating the intention to kill alone as placing the offence above the mid-range, failed to consider causally related mental disorder as mitigating moral culpability and affecting general deterrence, and erred by treating the Form 1 offence as deserving a separate penalty. These errors led to a sentence that was manifestly excessive. The appeal was allowed and a new sentence imposed, giving proper weight to the objective seriousness (found to be at mid-range), mitigation from mental disorder, and correct treatment of the Form 1 offence.

Court Disposition

Appeal allowed. Sentence quashed. Leave to appeal granted. Applicant resentenced.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed, sentence quashed.' 'In lieu thereof, applicant sentenced (taking into account the Form 1 offence) to a non-parole period of 13½ years commencing 14 November 2003 and expiring 13 May 2017, with a balance of term of four and a half years commencing 14 May 2017 and expiring...