Rushby v R [2006] NSWCCA 25

Rushby v R [2006] NSWCCA 25

Although the sentencing judge did not err in deciding that some or total accumulation was open, the total accumulation of the sentences produced a manifestly excessive and disproportionate aggregate sentence exceeding the totality of the applicant's criminality. The appropriate correction was to make the sentence for malicious wounding commence on 17 April 2004, concurrently with the other sentence.

Jurisdiction
Australia
Judgment Date
28 February 2006
Procedural Posture
Criminal Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal; Application for Leave to Appeal and Sentence Appeal
Outcome
Application for leave to appeal granted; appeal against the sentence for malicious wounding allowed to the extent of altering its commencement date.
Legal Topics
['malicious Wounding' 'assault Occasioning Actual Bodily Harm' 'pleas of Guilty' 'manifest Excess' 'mental and Emotional Disorder in Sentencing' 'sentencing Disparities' 'concurrency and Accumulation of Sentences' 'totality']
['criminal Law' 'sentencing'] ['malicious Wounding' 'assault Occasioning Actual Bodily Harm' 'pleas of Guilty' 'manifest Excess' 'mental and Emotional Disorder in Sentencing' 'sentencing Disparities' 'concurrency and Accumulation of Sentences' 'totality']

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Procedural Posture

Criminal Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal; Application for Leave to Appeal and Sentence Appeal

Legal Issues

  1. 1 ['Whether the total effective sentence imposed for malicious wounding and assault occasioning actual bodily harm was manifestly excessive.' "Whether total accumulation of the sentences produced an aggregate sentence disproportionate to the applicant's criminality." "Whether the applicant's depression and substance abuse should have significantly reduced culpability or general deterrence in sentencing."]

Ratio Decidendi

Although the sentencing judge did not err in deciding that some or total accumulation was open, the total accumulation of the sentences produced a manifestly excessive and disproportionate aggregate sentence exceeding the totality of the applicant's criminality. The appropriate correction was to make the sentence for malicious wounding commence on 17 April 2004, concurrently with the other sentence.

Court Disposition

Application for leave to appeal granted; appeal against the sentence for malicious wounding allowed to the extent of altering its commencement date.

Orders

  • ['Application for leave to appeal granted.' 'Appeal in respect of the sentence imposed on the offence of malicious wounding allowed to the extent that the sentence is specified to commence on 17 April 2004. The non-parole period would expire on 16 April 2007 and the balance of term on 16 April 2009.']