ALLEN v R [2010] NSWCCA 47

ALLEN v R [2010] NSWCCA 47

The kidnapping sentence was manifestly excessive because the sentencing judge treated the offence as close to the worst category, although the detention was relatively brief, lasted only so long as necessary to commit the sexual offence, and there was no proper basis to infer that the applicant prolonged or intended to prolong it after the child wished to return. However, the overall degree of accumulation and aggregate sentence were not manifestly excessive because two discrete offences had to be reflected and the applicant's lack of insight, poor supervision history, high risk of re-offending and danger to the community were significant sentencing considerations.

Jurisdiction
Australia
Judgment Date
16 March 2010
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence
Outcome
Leave to appeal granted; appeal allowed in part; sentence for the kidnapping offence quashed and replaced.
Legal Topics
['appeal Against Sentence' 'kidnapping' 'sexual Intercourse With a Child Under 10' 'objective Gravity' 'manifest Excess' 'accumulation of Sentences']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'kidnapping' 'sexual Intercourse With a Child Under 10' 'objective Gravity' 'manifest Excess' 'accumulation of Sentences']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence

Legal Issues

  1. 1 ['Whether the sentence imposed for the kidnapping offence under s 86(1)(b) of the Crimes Act was manifestly excessive because the objective gravity of the offence was over-assessed.' 'Whether the degree of accumulation of the two sentences was excessive or made the aggregate sentence manifestly excessive.']

Ratio Decidendi

The kidnapping sentence was manifestly excessive because the sentencing judge treated the offence as close to the worst category, although the detention was relatively brief, lasted only so long as necessary to commit the sexual offence, and there was no proper basis to infer that the applicant prolonged or intended to prolong it after the child wished to return. However, the overall degree of accumulation and aggregate sentence were not manifestly excessive because two discrete offences had to be reflected and the applicant's lack of insight, poor supervision history, high risk of re-offending and danger to the community were significant sentencing considerations.

Court Disposition

Leave to appeal granted; appeal allowed in part; sentence for the kidnapping offence quashed and replaced.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed in part. The sentence imposed on 11 February 2009 for the offence under s 86(1)(b) of the Crimes Act is quashed.' 'In lieu, a non parole period of 4 years is imposed, commencing 15 September 2008, expiring 14 September 2012, with a balance of term of 2 years expiring 14...