R v Van Rysewyk [2008] NSWCCA 130

R v Van Rysewyk [2008] NSWCCA 130

The sentence was affected by patent error because the judge included the respondent's conditional liberty in assessing objective gravity, and it was manifestly inadequate. Properly assessed, the offence was substantially above the mid range of objective gravity, and the original non-parole period and aggregate...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
16 June 2008
Procedural Posture
Crown Appeal Against Sentence / Appeal and Re Sentence in the New South Wales Court of Criminal Appeal
Outcome
Appeal allowed; sentence quashed; respondent re-sentenced.
Legal Topics
['crown Appeal Against Sentence' 'specially Aggravated Break, Enter and Steal' 'standard Non Parole Period' 'objective Gravity' 'conditional Liberty' 'manifest Inadequacy' 'drug Court Referral']
['criminal Law' 'sentencing'] ['crown Appeal Against Sentence' 'specially Aggravated Break, Enter and Steal' 'standard Non Parole Period' 'objective Gravity' 'conditional Liberty' 'manifest Inadequacy' 'drug Court Referral']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Crown Appeal Against Sentence / Appeal and Re Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred by taking the respondent's conditional liberty into account when assessing the objective gravity of the offence." 'Whether the offence was properly assessed against the standard non-parole period and the range of objective seriousness.' 'Whether the sentence and aggregate sentence were manifestly inadequate.' 'Whether the respondent should be referred to the Drug Court under the Drug Court Act 1998 in the event the appeal was dismissed.']

Ratio Decidendi

The sentence was affected by patent error because the judge included the respondent's conditional liberty in assessing objective gravity, and it was manifestly inadequate. Properly assessed, the offence was substantially above the mid range of objective gravity, and the original non-parole period and aggregate sentence failed to give meaningful effect to the objective seriousness of the offence, the standard non-parole period, and the respondent's total criminality.

Court Disposition

Appeal allowed; sentence quashed; respondent re-sentenced.

Orders

  • ['Appeal allowed' 'The sentence imposed by Payne DCJ on 14 September 2007 is quashed' 'In lieu, the respondent is sentenced to a non parole period of five years, to date from 11 October 2007, expiring 10 October 2012, with a balance of term of three years and seven months, expiring 10 May 2016. The respondent is...