R v Roberts [2003] NSWCCA 309

R v Roberts [2003] NSWCCA 309

The appeal succeeded because the sentencing judge materially erred in treating the applicant as posing a continuing risk requiring specific deterrence or protective detention despite evidence that he had not committed like offences for about two decades, failed to give an identifiable and sufficient discount for the guilty pleas, and imposed a wholly cumulative sentence for count 2 notwithstanding overlap created by taking serious matters concerning the same complainant into account on the Form 1 for count 1. The resulting sentences for the first and second counts were manifestly excessive and were quashed and replaced with lesser sentences.

Jurisdiction
Australia
Judgment Date
11 November 2003
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Application for leave granted, appeal allowed, sentences for the first and second counts quashed, and the applicant resentenced.
Legal Topics
['old Sexual Assault Offences' 'discount for Plea of Guilty' 'form 1 Offences' 'specific Deterrence and Rehabilitation' 'accumulation of Sentences' 'special Circumstances' 'protective Custody']
['criminal Law and Procedure' 'sentencing'] ['old Sexual Assault Offences' 'discount for Plea of Guilty' 'form 1 Offences' 'specific Deterrence and Rehabilitation' 'accumulation of Sentences' 'special Circumstances' 'protective Custody']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding that the applicant had little prospect of rehabilitation and describing him as a predator at the date of sentence.' 'Whether the sentencing judge erred in his approach to Form 1 offences.' 'Whether prior sentences imposed on the applicant in 1979 and 1982 assisted in determining the appropriate sentence for these historical offences.' 'Whether sentencing patterns at the time the offences were committed were properly taken into account.' "Whether the sentencing judge gave proper weight to the applicant's subjective circumstances." 'Whether the sentencing judge gave a proper discount for the pleas of guilty.' 'Whether the sentencing judge erred in imposing a wholly cumulative sentence for count 2.' 'Whether the sentencing judge failed to reflect special circumstances in the non-parole period.']

Ratio Decidendi

The appeal succeeded because the sentencing judge materially erred in treating the applicant as posing a continuing risk requiring specific deterrence or protective detention despite evidence that he had not committed like offences for about two decades, failed to give an identifiable and sufficient discount for the guilty pleas, and imposed a wholly cumulative sentence for count 2 notwithstanding overlap created by taking serious matters concerning the same complainant into account on the Form 1 for count 1. The resulting sentences for the first and second counts were manifestly excessive and were quashed and replaced with lesser sentences.

Court Disposition

Application for leave granted, appeal allowed, sentences for the first and second counts quashed, and the applicant resentenced.

Orders

  • ['The application for leave is granted, the appeal allowed and the sentences for the first and second counts are quashed.' 'The applicant is sentenced for the first count, and taking into account the matters on the Form 1, to imprisonment for 7 years with a non-parole period of 4 years 6 months. The sentence is to...