Gray v R [2013] NSWCCA 169

Gray v R [2013] NSWCCA 169

The appeal failed because the sentencing judge did not make the asserted error. Although special circumstances were found partly by reference to rehabilitation, the two-year parole period in the aggregate sentence gave practical effect to that finding, while the six-year non-parole period properly reflected the serious criminality of the eight sentenced offences, the Form 1 matters, the applicant's lengthy record, and the fact that the offences were committed while on parole. The sentencing judge followed the Pearce approach by imposing sentences for the offences and then addressing accumulation, concurrency and totality, and no lesser sentence was warranted in law.

Jurisdiction
Australia
Judgment Date
19 July 2013
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court on 16 December 2010
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sentence Appeal' 'special Circumstances' 'non Parole Period' 'accumulation and Concurrency' 'totality' 'pearce Error' 'armed Robbery' 'taking and Driving a Motor Vehicle Without Consent']
['criminal Law' 'sentencing'] ['sentence Appeal' 'special Circumstances' 'non Parole Period' 'accumulation and Concurrency' 'totality' 'pearce Error' 'armed Robbery' 'taking and Driving a Motor Vehicle Without Consent']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court on 16 December 2010

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to give practical effect to a finding of special circumstances in the total effective sentence.' 'Whether the sentencing judge committed an error of the kind identified in Pearce v The Queen by the manner in which the sentences were structured.' 'Whether a lesser sentence was warranted in law.']

Ratio Decidendi

The appeal failed because the sentencing judge did not make the asserted error. Although special circumstances were found partly by reference to rehabilitation, the two-year parole period in the aggregate sentence gave practical effect to that finding, while the six-year non-parole period properly reflected the serious criminality of the eight sentenced offences, the Form 1 matters, the applicant's lengthy record, and the fact that the offences were committed while on parole. The sentencing judge followed the Pearce approach by imposing sentences for the offences and then addressing accumulation, concurrency and totality, and no lesser sentence was warranted in law.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant Leave to Appeal' 'Appeal dismissed']