CM v R [2013] NSWCCA 341

CM v R [2013] NSWCCA 341

The sentencing discretion miscarried because the judge found special circumstances but, through accumulation, produced an overall non-parole period of about 78 per cent without indicating awareness of or reasons for that result. The judge also should have applied the 20% assistance discount to each sentence because the assistance was unrelated to any particular offence. Re-sentencing was required, though the sentence for charge 5 and the total sentence were not otherwise shown to be manifestly excessive.

Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court; Re Sentencing in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentences quashed and aggregate sentence imposed.
Legal Topics
['armed Robbery' 'robbery' 'attempted Robbery' 'assistance to Authorities' 'special Circumstances' 'non Parole Period' 'aggregate Sentencing' 'manifest Excess' 'totality']
['criminal Law' 'sentencing' 'criminal Procedure'] ['armed Robbery' 'robbery' 'attempted Robbery' 'assistance to Authorities' 'special Circumstances' 'non Parole Period' 'aggregate Sentencing' 'manifest Excess' 'totality']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court; Re Sentencing in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by applying the 20% discount for assistance to authorities only to charge 5 and not to the other offences.' 'Whether the sentence imposed on charge 5 was manifestly excessive.' 'Whether the sentencing judge failed to give practical effect to the finding of special circumstances in the total effective sentence.' 'Whether the total sentence of 9 years with a non-parole period of 7 years was manifestly excessive.']

Ratio Decidendi

The sentencing discretion miscarried because the judge found special circumstances but, through accumulation, produced an overall non-parole period of about 78 per cent without indicating awareness of or reasons for that result. The judge also should have applied the 20% assistance discount to each sentence because the assistance was unrelated to any particular offence. Re-sentencing was required, though the sentence for charge 5 and the total sentence were not otherwise shown to be manifestly excessive.

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed and aggregate sentence imposed.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Quash the sentences imposed in the District Court and, in lieu, impose an aggregate sentence of 8 years 9 months with a non-parole period of 6 years. The sentence is to date from 20 October 2010. The earliest day the applicant will be eligible for release on parole is...