Daniel FORBES v R [2009] NSWCCA 292

Daniel FORBES v R [2009] NSWCCA 292

The fixed term imposed on count 2 could not stand because the facilitate boat re-birthing offence carried a standard non-parole period and a non-parole period had to be specified. Although there was irregularity in the approach to the standard non-parole period for count 1, no lesser sentence was warranted because the aggravated break, enter and steal was serious, carefully planned and executed, involved substantial stolen money and damage, and the serious Form 1 offences had to be taken into account. The sentencing judge's qualified findings on intimidation and lack of contrition were open, there was no demonstrated error in assessing the applicant's role in the joint criminal...

Jurisdiction
Australia
Judgment Date
17 December 2009
Procedural Posture
Application for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted on both counts; appeal dismissed as to sentence on count 1; appeal allowed as to sentence on count 2 and applicant re-sentenced on that count.
Legal Topics
['aggravated Break, Enter and Steal' 'facilitate Boat Re Birthing' 'standard Non Parole Period' 'form 1 Offences' 'joint Criminal Enterprise' 'parity With Co Offender' 'manifest Excess']
['criminal Law' 'sentencing'] ['aggravated Break, Enter and Steal' 'facilitate Boat Re Birthing' 'standard Non Parole Period' 'form 1 Offences' 'joint Criminal Enterprise' 'parity With Co Offender' 'manifest Excess']

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Procedural Posture

Application for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by imposing a fixed term for the facilitate boat re-birthing offence, which carried a standard non-parole period.' 'Whether the sentencing judge erred in the approach to the standard non-parole period for the aggravated break, enter and steal offence.' "Whether the sentencing judge failed to assess and give proper weight to the applicant's role in the joint criminal enterprise and alleged intimidation by the co-offender." "Whether the sentences were manifestly excessive, including having regard to parity with the co-offender's sentence."]

Ratio Decidendi

The fixed term imposed on count 2 could not stand because the facilitate boat re-birthing offence carried a standard non-parole period and a non-parole period had to be specified. Although there was irregularity in the approach to the standard non-parole period for count 1, no lesser sentence was warranted because the aggravated break, enter and steal was serious, carefully planned and executed, involved substantial stolen money and damage, and the serious Form 1 offences had to be taken into account. The sentencing judge's qualified findings on intimidation and lack of contrition were open, there was no demonstrated error in assessing the applicant's role in the joint criminal...

Court Disposition

Leave to appeal granted on both counts; appeal dismissed as to sentence on count 1; appeal allowed as to sentence on count 2 and applicant re-sentenced on that count.

Orders

  • ['As to sentence on count 1, leave to appeal granted but appeal dismissed.' 'As to sentence on count 2, leave to appeal granted and appeal allowed.' 'On count 2, the applicant is re-sentenced to a non-parole period of 18 months, commencing on 20 March 2007 and expiring on 19 September 2008, and a balance of term of...