Regina v Frascella [2001] NSWCCA 137

Regina v Frascella [2001] NSWCCA 137

The individual complaints about backdating, Jurisic, Children's Court jurisdiction, youth, guilty plea credit and manifest excess were not sustained, and the overall sentence was not manifestly excessive. However, the sentencing judge's approach did not literally comply with Pearce because the sentence structure did...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 April 2001
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; applicant re-sentenced.
Legal Topics
['dangerous Driving Occasioning Death' 'driving a Conveyance Taken Without Consent of the Owner' 'youth Sentencing' 'guilty Plea Discount' 'pre Sentence Custody' 'guideline Judgment' 'totality' 'pearce Sentencing Structure']
['criminal Law' 'sentencing'] ['dangerous Driving Occasioning Death' 'driving a Conveyance Taken Without Consent of the Owner' 'youth Sentencing' 'guilty Plea Discount' 'pre Sentence Custody' 'guideline Judgment' 'totality' 'pearce Sentencing Structure']

Source-derived case record

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to backdate the sentence to 6 May 2000 for pre-sentence custody.' 'Whether the sentencing judge misapplied the guideline judgment in R v Jurisic (1998) 45 NSWLR 209.' "Whether the sentencing judge erred by failing to take into account that the offence could have been dealt with in the Children's Court." "Whether the sentencing judge failed to give weight to the applicant's youth." "Whether the sentencing judge failed to give sufficient credit for the applicant's plea of guilty." 'Whether the sentence was manifestly excessive.' 'Whether the sentencing judge failed to correctly apply Pearce v The Queen (1998) 194 CLR 610.']

Ratio Decidendi

The individual complaints about backdating, Jurisic, Children's Court jurisdiction, youth, guilty plea credit and manifest excess were not sustained, and the overall sentence was not manifestly excessive. However, the sentencing judge's approach did not literally comply with Pearce because the sentence structure did not properly impose sentences for each offence. The Court therefore granted leave, allowed the appeal, quashed the sentence and re-sentenced the applicant while maintaining an overall sentence open on the facts after considering seriousness, the Forms 1 matters, the guilty plea, youth, subjective features, pre-sentence custody and totality.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; applicant re-sentenced.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed; sentence quashed.' 'On count 2 (driving a conveyance taken without the consent of the owner), the applicant is sentenced to imprisonment for two years starting on 23 June 2000 with a non-parole period of six months starting that day and ending on 22 December 2000.' 'On...