Cross v R [2016] NSWCCA 214

Cross v R [2016] NSWCCA 214

The sentencing judge did not err by taking into account the context of unanswered calls, as these provided background and were not treated as criminal conduct; however, in all the circumstances, the sentence imposed was manifestly excessive, notably given the lack of threats or violence in the calls and the penalty relative to the underlying offences. The appeal is allowed and the sentence quashed and replaced with a lesser one, reflecting both the gravity of the offence and the appellant’s subjective case.

Jurisdiction
Australia
Judgment Date
07 October 2016
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence; Re Sentencing
Outcome
Appeal allowed; sentence quashed; re-sentenced to lesser term
Legal Topics
['influencing a Witness' 'sentencing' 'interfering With a Prosecution Witness' 'manifestly Excessive Sentence' 'objective Seriousness in Sentencing']
['criminal Law'] ['influencing a Witness' 'sentencing' 'interfering With a Prosecution Witness' 'manifestly Excessive Sentence' 'objective Seriousness in Sentencing']

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Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence; Re Sentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred by taking into account irrelevant material (unanswered calls) when assessing objective seriousness' 'Whether the sentence imposed was manifestly excessive']

Ratio Decidendi

The sentencing judge did not err by taking into account the context of unanswered calls, as these provided background and were not treated as criminal conduct; however, in all the circumstances, the sentence imposed was manifestly excessive, notably given the lack of threats or violence in the calls and the penalty relative to the underlying offences. The appeal is allowed and the sentence quashed and replaced with a lesser one, reflecting both the gravity of the offence and the appellant’s subjective case.

Court Disposition

Appeal allowed; sentence quashed; re-sentenced to lesser term

Orders

  • ['Leave to appeal granted.' 'Sentence imposed in the District Court on 20 March 2015 is quashed.' 'In lieu thereof, the applicant is sentenced to imprisonment for a non-parole period of 2 years commencing on 13 April 2015 and expiring on 12 April 2017, with a balance of term of 1 year and 6 months expiring on 12...