Heron v Regina [2006] NSWCCA 215

Heron v Regina [2006] NSWCCA 215

The sentencing judge erred in not properly giving effect to the finding of special circumstances, in mischaracterising the seriousness of the offence for the purposes of the standard non-parole period, by treating the applicant's record as an aggravating factor, and by treating the injury as aggravating when it was an essential element of the offence. The errors warranted resentencing. The objective seriousness was less than mid-range, and after weighing all factors, a lesser sentence was warranted.

Parties
Applicant: Cecil Arnold Heron; Respondent: Crown
Jurisdiction
Australia
Judgment Date
26 July 2006
Procedural Posture
Sentence Appeal / Court of Criminal Appeal Judgment on Application for Leave and Resentencing
Outcome
Leave to appeal granted; sentence quashed; applicant re-sentenced.
Legal Topics
Sentencing, Grievous Bodily Harm, Standard Non Parole Period, Aggravating and Mitigating Factors, Appeal Against Sentence
Criminal Law Sentencing Grievous Bodily Harm Standard Non Parole Period Aggravating and Mitigating Factors Appeal Against Sentence

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Parties

Cecil Arnold Heron

Applicant

Crown

Respondent

Procedural Posture

Sentence Appeal / Court of Criminal Appeal Judgment on Application for Leave and Resentencing

Legal Issues

  1. 1 Whether the sentencing judge erred in not properly applying special circumstances in the ratio between head sentence and non-parole period
  2. 2 Whether the sentencing judge properly assessed the seriousness of the offence for the purposes of the standard non-parole period
  3. 3 Whether the applicant's criminal record was wrongly used as an aggravating factor

Ratio Decidendi

The sentencing judge erred in not properly giving effect to the finding of special circumstances, in mischaracterising the seriousness of the offence for the purposes of the standard non-parole period, by treating the applicant's record as an aggravating factor, and by treating the injury as aggravating when it was an essential element of the offence. The errors warranted resentencing. The objective seriousness was less than mid-range, and after weighing all factors, a lesser sentence was warranted.

Court Disposition

Leave to appeal granted; sentence quashed; applicant re-sentenced.

Orders

  • Leave to appeal granted.
  • Sentence passed by Ducker ADCJ on 4 March 2005 is quashed.