R v BOWTELL [2004] NSWCCA 17

R v BOWTELL [2004] NSWCCA 17

Although the sentencing judge did not err in giving the applicant a lesser guilty plea discount than Anderson for counts 2, 3 and 4, the accumulated sentences, the treatment of counts 5 and 6, and the lack of recognition of totality created an inappropriate disparity with Anderson's sentence. Parity, adjusted for differences in plea discount, totality and Anderson's double jeopardy allowance, required resentencing on counts 5 to 7 so that the applicant's total sentence broadly matched Anderson's total sentence.

Jurisdiction
Australia
Judgment Date
09 February 2004
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Review of Sentences Imposed in the District Court
Outcome
Leave to appeal granted; appeal dismissed as to counts 1 to 4; appeal allowed as to counts 5 to 7; sentences on counts 5 to 7 quashed and replaced.
Legal Topics
['parity in Sentencing' 'proportionality' 'totality' 'guilty Plea Discount' 'double Jeopardy on Crown Appeal' 'sexual Assault' 'escape From Lawful Custody' 'aggravated Robbery' 'detaining for Advantage and Causing Injury' 'stealing a Motor Vehicle']
['criminal Law' 'sentencing'] ['parity in Sentencing' 'proportionality' 'totality' 'guilty Plea Discount' 'double Jeopardy on Crown Appeal' 'sexual Assault' 'escape From Lawful Custody' 'aggravated Robbery' 'detaining for Advantage and Causing Injury' 'stealing a Motor Vehicle']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether disparity between the applicant's sentences and his co-offender Anderson's sentences gave rise to a justifiable sense of grievance under the principles of parity and proportionality." 'Whether the sentencing judge erred in giving the applicant a lesser discount than Anderson for guilty pleas.' "Whether the sentencing judge failed to give proper effect to totality, having regard to the applicant's existing sentence." 'Whether a lesser sentence was warranted in law under s6(3) Criminal Appeal Act 1912.']

Ratio Decidendi

Although the sentencing judge did not err in giving the applicant a lesser guilty plea discount than Anderson for counts 2, 3 and 4, the accumulated sentences, the treatment of counts 5 and 6, and the lack of recognition of totality created an inappropriate disparity with Anderson's sentence. Parity, adjusted for differences in plea discount, totality and Anderson's double jeopardy allowance, required resentencing on counts 5 to 7 so that the applicant's total sentence broadly matched Anderson's total sentence.

Court Disposition

Leave to appeal granted; appeal dismissed as to counts 1 to 4; appeal allowed as to counts 5 to 7; sentences on counts 5 to 7 quashed and replaced.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal insofar as it relates to the sentences imposed on counts 1 to 4.' 'Allow the appeal in respect of the sentences imposed for the offences in counts 5 to 7.' 'Quash the sentences imposed for the offences in counts 5 to 7.' 'In respect of the offence the subject of count 5,...