Brennan v R [2011] NSWCCA 278

Brennan v R [2011] NSWCCA 278

The sentencing judge treated the standard non-parole period for Count 1 as seven years when the correct statutory standard non-parole period was five years. Because that incorrect benchmark was used as a sentencing guidepost, the error was material. Leave to appeal was granted, the sentence on Count 1 was quashed, and a lesser sentence was imposed.

Jurisdiction
Australia
Judgment Date
16 December 2011
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted in respect of the sentence on Count 1; sentence on Count 1 quashed and replaced; sentence on Count 2 affirmed.
Legal Topics
['break and Enter in Circumstances of Aggravation' 'attempt to Steal a Motor Vehicle' 'standard Non Parole Period' 'material Sentencing Error' 'guilty Plea' 'form 1 Offences']
['criminal Law' 'sentencing'] ['break and Enter in Circumstances of Aggravation' 'attempt to Steal a Motor Vehicle' 'standard Non Parole Period' 'material Sentencing Error' 'guilty Plea' 'form 1 Offences']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred by relying on an incorrect standard non-parole period as a guidepost when sentencing the applicant on Count 1.' 'Whether the sentence on Count 1 should be quashed and the applicant re-sentenced.']

Ratio Decidendi

The sentencing judge treated the standard non-parole period for Count 1 as seven years when the correct statutory standard non-parole period was five years. Because that incorrect benchmark was used as a sentencing guidepost, the error was material. Leave to appeal was granted, the sentence on Count 1 was quashed, and a lesser sentence was imposed.

Court Disposition

Leave to appeal granted in respect of the sentence on Count 1; sentence on Count 1 quashed and replaced; sentence on Count 2 affirmed.

Orders

  • ['Grant leave to appeal in respect of the sentence on Count 1.' 'Quash the sentence on Count 1.' 'In lieu thereof, sentence the applicant on Count 1 to a non parole period of three years six months imprisonment commencing on 26 March 2010 and expiring on 25 September 2013 with a balance of term of 14 months to...