R v Walter & Thompson [2004] NSWCCA 304

R v Walter & Thompson [2004] NSWCCA 304

The Crown established sentencing error. The Fernando principles did not apply to Mr Thompson because there was no history of dysfunctional family, deprived socio-economic circumstances or alcohol abuse of the kind described in Fernando, and their relevance to Mr Walter was limited. The non-parole periods imposed did not adequately reflect the brutal criminality of the robbery, despite the respondents' personal circumstances and prospects of rehabilitation. Although delay in sentencing and on appeal was significant and relevant to discretion and resentencing, the Court determined that it should intervene. The substituted sentences were moderated to reflect double jeopardy, delay,...

Jurisdiction
Australia
Judgment Date
03 September 2004
Procedural Posture
Crown Appeals Against Sentence / Appeal to the New South Wales Court of Criminal Appeal After Guilty Pleas and Sentence in the District Court
Outcome
Crown appeals allowed; sentences imposed in the District Court quashed; respondents resentenced.
Legal Topics
['crown Appeal Against Sentence' 'robbery in Circumstances of Aggravation' 'manifest Inadequacy' 'non Parole Period' 'periodic Detention' 'fernando Principles' 'delay on Appeal' 'double Jeopardy on Crown Appeal']
['criminal Law' 'criminal Practice and Procedure' 'sentencing'] ['crown Appeal Against Sentence' 'robbery in Circumstances of Aggravation' 'manifest Inadequacy' 'non Parole Period' 'periodic Detention' 'fernando Principles' 'delay on Appeal' 'double Jeopardy on Crown Appeal']

Case Brief

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Procedural Posture

Crown Appeals Against Sentence / Appeal to the New South Wales Court of Criminal Appeal After Guilty Pleas and Sentence in the District Court

Legal Issues

  1. 1 ['Whether the sentences imposed for robbery in circumstances of aggravation under s95(1) Crimes Act 1900 were manifestly inadequate.' 'Whether the sentencing judge erred in applying or giving weight to the principles in Fernando to either respondent.' 'Whether the non-parole periods of 6 months for Mr Walter and 4 months for Mr Thompson adequately reflected the criminality of the offences.' 'Whether the Court should exercise its discretion not to intervene because of delay in sentencing and in prosecuting the Crown appeals.' "What sentences should be imposed after allowing for double jeopardy, delay, rehabilitation and the respondents' subjective circumstances."]

Ratio Decidendi

The Crown established sentencing error. The Fernando principles did not apply to Mr Thompson because there was no history of dysfunctional family, deprived socio-economic circumstances or alcohol abuse of the kind described in Fernando, and their relevance to Mr Walter was limited. The non-parole periods imposed did not adequately reflect the brutal criminality of the robbery, despite the respondents' personal circumstances and prospects of rehabilitation. Although delay in sentencing and on appeal was significant and relevant to discretion and resentencing, the Court determined that it should intervene. The substituted sentences were moderated to reflect double jeopardy, delay,...

Court Disposition

Crown appeals allowed; sentences imposed in the District Court quashed; respondents resentenced.

Orders

  • ['In respect of David John Walter: Crown appeal allowed.' 'In respect of David John Walter: Sentence imposed in the District Court quashed.' 'In respect of David John Walter: In lieu thereof the respondent sentenced to imprisonment for 4 years to commence on 4 March 2004. The Court specified a non parole period of...