David EID v R [2008] NSWCCA 255

David EID v R [2008] NSWCCA 255

The sentencing judge did not err in treating the presence of the firearm as an aggravating factor because the sentence reflected the objective gravity of the offence, not improper regard to the firearm. The failure to comply with s 44(1) was a technical error not affecting discretion. The sentence was not manifestly excessive, given the scale, planning and objective seriousness of the offence.

Jurisdiction
Australia
Judgment Date
05 November 2008
Procedural Posture
Criminal Appeal / Appeal Against Severity of Sentence
Outcome
Leave granted; appeal dismissed; sentence re-formulated.
Legal Topics
['appeal Against Sentence' 'armed Robbery' 'dealing in Proceeds of Crime' 'failure to Comply With Sentencing Procedure' 'aggravating Factors' 'manifestly Excessive Sentence']
['criminal Law'] ['appeal Against Sentence' 'armed Robbery' 'dealing in Proceeds of Crime' 'failure to Comply With Sentencing Procedure' 'aggravating Factors' 'manifestly Excessive Sentence']

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Procedural Posture

Criminal Appeal / Appeal Against Severity of Sentence

Legal Issues

  1. 1 ['Whether the presence of a firearm was improperly treated as an aggravating factor when it was an element of the offence' 'Whether there was a failure to sentence in accordance with s 44(1) Crimes (Sentencing Procedure) Act 1999' 'Whether sentence was manifestly excessive']

Ratio Decidendi

The sentencing judge did not err in treating the presence of the firearm as an aggravating factor because the sentence reflected the objective gravity of the offence, not improper regard to the firearm. The failure to comply with s 44(1) was a technical error not affecting discretion. The sentence was not manifestly excessive, given the scale, planning and objective seriousness of the offence.

Court Disposition

Leave granted; appeal dismissed; sentence re-formulated.

Orders

  • ['Leave granted to appeal;' 'Appeal dismissed;' 'In respect of first count, the applicant is sentenced to imprisonment with a non-parole period of 6 years and 6 months, commencing on 8 August 2006 and expiring on 7 February 2013, and a balance of term of 3 years and 10 months, expiring on 7 December 2016.']