CM v R [2020] NSWCCA 136

CM v R [2020] NSWCCA 136

The sentencing judge imposed a sentence whose nominal non-parole period was 75% of the head sentence, but because it was accumulated on an existing sentence it produced an effective non-parole period of 87.5% of the effective head sentence. The issue was not addressed in submissions or reasons, special circumstances were not considered despite reliance on mental health and drug use, and the Court was not satisfied that the sentencing judge intended that effective ratio. House v The King error was established, requiring resentencing; in the unusual time-sensitive circumstances the Court varied the non-parole period to 18 months so that the effective total ratio was 75% and the applicant...

Jurisdiction
Australia
Judgment Date
19 June 2020
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence varied as to the non-parole period.
Legal Topics
['appeal Against Sentence' 'break Into Dwelling House and Committing Indictable Offence' 'accumulation of Sentences' 'statutory Ratio Between Parole and Non Parole Period' 'special Circumstances' 'mental Health and Drug Use' 'resentencing']
['criminal Law' 'sentencing'] ['appeal Against Sentence' 'break Into Dwelling House and Committing Indictable Offence' 'accumulation of Sentences' 'statutory Ratio Between Parole and Non Parole Period' 'special Circumstances' 'mental Health and Drug Use' 'resentencing']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to consider totality of the effective sentence given accumulation upon the prior sentence.' 'Whether the sentencing judge erred by failing to consider special circumstances.' 'Whether the non-parole period produced an unintended effective ratio greater than the statutory ratio.']

Ratio Decidendi

The sentencing judge imposed a sentence whose nominal non-parole period was 75% of the head sentence, but because it was accumulated on an existing sentence it produced an effective non-parole period of 87.5% of the effective head sentence. The issue was not addressed in submissions or reasons, special circumstances were not considered despite reliance on mental health and drug use, and the Court was not satisfied that the sentencing judge intended that effective ratio. House v The King error was established, requiring resentencing; in the unusual time-sensitive circumstances the Court varied the non-parole period to 18 months so that the effective total ratio was 75% and the applicant...

Court Disposition

Leave to appeal granted; appeal allowed; sentence varied as to the non-parole period.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Vary the sentence of Weber SC DCJ delivered on 8 November 2019 in the following way: The non-parole period is to be 18 months, to commence from 6 November 2018, and to expire on 5 May 2020.']