McMenemy v R [2009] NSWCCA 50

McMenemy v R [2009] NSWCCA 50

The sentence for the s 97(1) robbery in company offence was outside the legitimate range of sentencing discretion because, after a 25 per cent plea discount, the head sentence exceeded the high end of the R v Henry guideline range and was not justified by the aggravating factor, the minor Form 1 offences, or the applicant's circumstances, remorse and rehabilitation. Although the sentencing structure involving accumulation was open to the judge, the length of the sentence for charge 3 made the total effective sentence manifestly excessive, requiring resentencing on that charge.

Jurisdiction
Australia
Judgment Date
27 February 2009
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal against sentence allowed in part; sentence for the third charge quashed and a lesser sentence imposed; other sentences confirmed.
Legal Topics
['robbery in Company' 'manifestly Excessive Sentence' 'guideline Judgments' 'totality' 'form 1 Offences' 'special Circumstances']
['criminal Law' 'sentencing'] ['robbery in Company' 'manifestly Excessive Sentence' 'guideline Judgments' 'totality' 'form 1 Offences' 'special Circumstances']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentence imposed for robbery in company contrary to s 97(1) of the Crimes Act was manifestly excessive.' 'Whether the total effective sentence was manifestly excessive, including by reason of accumulation of sentences for charges 1 and 3 with sentences for charges 2 and 5.']

Ratio Decidendi

The sentence for the s 97(1) robbery in company offence was outside the legitimate range of sentencing discretion because, after a 25 per cent plea discount, the head sentence exceeded the high end of the R v Henry guideline range and was not justified by the aggravating factor, the minor Form 1 offences, or the applicant's circumstances, remorse and rehabilitation. Although the sentencing structure involving accumulation was open to the judge, the length of the sentence for charge 3 made the total effective sentence manifestly excessive, requiring resentencing on that charge.

Court Disposition

Leave to appeal against sentence granted; appeal against sentence allowed in part; sentence for the third charge quashed and a lesser sentence imposed; other sentences confirmed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal against sentence allowed in the following respect: quash the sentence imposed for the offence contrary to s 97(1) of the Crimes Act (the third charge). In lieu thereof, taking into account the Form 1 offences impose a sentence of a non-parole period of two years...