R v Reilly; R v Smith [2012] NSWCCA 166

R v Reilly; R v Smith [2012] NSWCCA 166

The sentencing judge did not fail to apply an appropriate discount for the utilitarian value of the early guilty pleas and Smith's sentence was not manifestly excessive. However, Smith's sentence had to be backdated because the judge failed to give credit for 26 days of pre-sentence custody, acting on a wrong principle. Reilly's Form 1 ground failed because the judge adopted a permissible bottom-up approach, but the judge erred in imposing the same head sentence as Smith despite material differences: Smith had an extensive record and offended while on conditional liberty, whereas Reilly did not. Those differences required a lesser head sentence for Reilly, so his sentence was quashed and...

Jurisdiction
Australia
Judgment Date
13 August 2012
Procedural Posture
Criminal Sentence Appeal / Applications for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted for both applicants. Smith's appeal was upheld to the limited extent of backdating the commencement of his confirmed sentence. Reilly's appeal was upheld, his District Court sentence was quashed, and he was re-sentenced to a lesser term of imprisonment.
Legal Topics
['aggravated Break, Enter and Steal' 'ram Raid' 'guilty Plea Discount' 'form 1 Offences' 'manifest Excess' 'pre Sentence Custody' 'parity Principle' 'special Circumstances']
['criminal Law' 'sentencing'] ['aggravated Break, Enter and Steal' 'ram Raid' 'guilty Plea Discount' 'form 1 Offences' 'manifest Excess' 'pre Sentence Custody' 'parity Principle' 'special Circumstances']

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Procedural Posture

Criminal Sentence Appeal / Applications for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ["Whether the sentencing judge failed to apply an appropriate discount for the utilitarian value of the applicants' early pleas of guilty." "Whether Smith's sentence was manifestly excessive." 'Whether the sentencing judge failed to give Smith credit for 26 days of pre-sentence custody referable to the index offences.' 'Whether the sentencing judge erred in the manner in which he took Form 1 matters into account.' "Whether the sentencing judge failed to take into account Reilly's lack of significant previous convictions and whether Reilly had a justifiable sense of grievance arising from disparity with Smith's sentence."]

Ratio Decidendi

The sentencing judge did not fail to apply an appropriate discount for the utilitarian value of the early guilty pleas and Smith's sentence was not manifestly excessive. However, Smith's sentence had to be backdated because the judge failed to give credit for 26 days of pre-sentence custody, acting on a wrong principle. Reilly's Form 1 ground failed because the judge adopted a permissible bottom-up approach, but the judge erred in imposing the same head sentence as Smith despite material differences: Smith had an extensive record and offended while on conditional liberty, whereas Reilly did not. Those differences required a lesser head sentence for Reilly, so his sentence was quashed and...

Court Disposition

Leave to appeal granted for both applicants. Smith's appeal was upheld to the limited extent of backdating the commencement of his confirmed sentence. Reilly's appeal was upheld, his District Court sentence was quashed, and he was re-sentenced to a lesser term of imprisonment.

Orders

  • ['In the case of Beau Alexander Smith: Leave to appeal granted.' 'In the case of Beau Alexander Smith: Appeal upheld, albeit to a limited extent.' 'In the case of Beau Alexander Smith: The sentence passed in the District Court of 5 years with a non-parole period of 3 years 9 months is confirmed, but is to commence...