Russell v R [2010] NSWCCA 248

Russell v R [2010] NSWCCA 248

The sentencing Judge erred in failing to impose a non-parole period for count 2 as required by statute. Otherwise, the Judge did not err in setting the commencement date, taking breach of parole into account, applying the totality principle, or in considering the objective seriousness of the offences. The sentences imposed were within the permissible range, and the Judge's remarks did not indicate impermissible preventative detention or insufficient application of the Fernando principles.

Jurisdiction
Australia
Judgment Date
11 November 2010
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence allowed in part; sentence for count 2 quashed and re-sentenced, remaining sentences confirmed.
Legal Topics
['sentencing' 'appeal' 'totality' 'non Parole Period' 'fernando Principles']
['criminal Law'] ['sentencing' 'appeal' 'totality' 'non Parole Period' 'fernando Principles']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 ['Whether sentencing Judge erred in failing to impose a non-parole period for count 2' 'Whether error in commencement date of sentence' 'Whether error in taking into account breach of parole' 'Whether totality was considered' 'Whether Fernando principles were applied' 'Whether applicant sentenced on basis of preventative detention' 'Whether sentences were manifestly excessive']

Ratio Decidendi

The sentencing Judge erred in failing to impose a non-parole period for count 2 as required by statute. Otherwise, the Judge did not err in setting the commencement date, taking breach of parole into account, applying the totality principle, or in considering the objective seriousness of the offences. The sentences imposed were within the permissible range, and the Judge's remarks did not indicate impermissible preventative detention or insufficient application of the Fernando principles.

Court Disposition

Appeal against sentence allowed in part; sentence for count 2 quashed and re-sentenced, remaining sentences confirmed.

Orders

  • ['Leave to extend time to appeal be granted' 'Leave to appeal against sentence be granted' 'Sentence for count 2 quashed; substituted sentence of imprisonment with a non-parole period of 7 years commencing 4 April 2009 and expiring 3 April 2016 with a balance of term of 2 years commencing 4 April 2016 and expiring 3...