Porter v R [2019] NSWCCA 117

Porter v R [2019] NSWCCA 117

The sentencing judge's discretion miscarried because he failed to give reasons showing how he applied totality and failed to determine the applicant's submissions concerning remorse, rehabilitation prospects and likelihood of reoffending. However, on resentencing, delay was of reduced significance because it was largely attributable to the trauma and threats caused by the applicant, and the totality argument involved artificiality because the earlier sentences had expired. If the applicant had been sentenced for all three serious sexual assaults at one time, the present offences would have warranted a significant extension of the sentence; a lesser sentence was therefore not warranted.

Jurisdiction
Australia
Judgment Date
12 June 2019
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'totality Principle' 'delay in Sentencing' 'remorse' 'prospects of Rehabilitation' 'likelihood of Reoffending' 'resentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravated Sexual Intercourse Without Consent' 'totality Principle' 'delay in Sentencing' 'remorse' 'prospects of Rehabilitation' 'likelihood of Reoffending' 'resentencing']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred in his approach to the principle of totality.' 'Whether the sentencing judge failed to make a determination as to remorse.' "Whether the sentencing judge failed to make a determination as to the applicant's prospects for rehabilitation." "Whether the sentencing judge failed to make a determination as to the applicant's likelihood of reoffending." 'Whether, on resentencing, a lesser sentence was warranted.']

Ratio Decidendi

The sentencing judge's discretion miscarried because he failed to give reasons showing how he applied totality and failed to determine the applicant's submissions concerning remorse, rehabilitation prospects and likelihood of reoffending. However, on resentencing, delay was of reduced significance because it was largely attributable to the trauma and threats caused by the applicant, and the totality argument involved artificiality because the earlier sentences had expired. If the applicant had been sentenced for all three serious sexual assaults at one time, the present offences would have warranted a significant extension of the sentence; a lesser sentence was therefore not warranted.

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal dismissed.']