Mendes v R [2012] NSWCCA 103

Mendes v R [2012] NSWCCA 103

The sentencing judge erred in treating the standard non-parole period as the starting point and failing to set a non-parole period for Count 2, warranting appellate intervention; the applicant's intoxication was not mitigating given self-induced drug and alcohol use; the re-sentence imposed reflects the seriousness of injury, lack of mitigation for intoxication, and appropriate accumulation between counts.

Parties
Applicant: Antonio Jose Mendes; Respondent: Crown
Jurisdiction
Australia
Judgment Date
28 June 2012
Procedural Posture
Criminal Appeal / Leave to Appeal and Re Sentencing
Outcome
Appeal upheld; leave to appeal granted; sentences quashed and applicant re-sentenced
Legal Topics
Sentencing, Maliciously Inflict Grievous Bodily Harm, Intoxication and Sentencing, Totality Principle, Manifestly Excessive Sentence
Criminal Law Sentencing Maliciously Inflict Grievous Bodily Harm Intoxication and Sentencing Totality Principle Manifestly Excessive Sentence

Case Brief

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Parties

Antonio Jose Mendes

Applicant

Crown

Respondent

Procedural Posture

Criminal Appeal / Leave to Appeal and Re Sentencing

Legal Issues

  1. 1 Whether the sentencing judge erred in giving primary significance to the standard non-parole period
  2. 2 Whether the applicant's intoxication should have been regarded as a mitigating factor
  3. 3 Whether error occurred by declining to set a non-parole period for Count 2

Ratio Decidendi

The sentencing judge erred in treating the standard non-parole period as the starting point and failing to set a non-parole period for Count 2, warranting appellate intervention; the applicant's intoxication was not mitigating given self-induced drug and alcohol use; the re-sentence imposed reflects the seriousness of injury, lack of mitigation for intoxication, and appropriate accumulation between counts.

Court Disposition

Appeal upheld; leave to appeal granted; sentences quashed and applicant re-sentenced

Orders

  • Leave to appeal granted
  • Appeal upheld