DGM v REGINA [2006] NSWCCA 296

DGM v REGINA [2006] NSWCCA 296

The appeal was allowed on the basis that a marked disparity existed between the applicant's sentence and that of co-offender Kidd, not explained by differences in their objective or subjective circumstances. The sentencing judge erred in treating the applicant's circumstances as equivalent to Kidd's; since the applicant had a less serious criminal history and better prospects for rehabilitation, equal sentences were not justified. The failure to consider these favourable subjective circumstances and the error in calculation of pre-sentence custody constituted errors of law justifying appellate intervention.

Jurisdiction
Australia
Judgment Date
15 September 2006
Procedural Posture
Criminal / Sentence Appeal
Outcome
Leave to appeal granted; appeal allowed; original sentence quashed and new sentence imposed.
Legal Topics
['sentence Appeal' 'parity' 'totality' 'home Invasion' 'armed Robbery']
['criminal Law'] ['sentence Appeal' 'parity' 'totality' 'home Invasion' 'armed Robbery']

Case Brief

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Procedural Posture

Criminal / Sentence Appeal

Legal Issues

  1. 1 ['Whether the sentence imposed on the applicant was excessive compared to a co-offender (Kidd) thus giving rise to a justifiable sense of grievance under the parity principle' "Whether the sentencing judge erred in not adequately considering the applicant's subjective circumstances" 'Error in calculation for pre-sentence custody']

Ratio Decidendi

The appeal was allowed on the basis that a marked disparity existed between the applicant's sentence and that of co-offender Kidd, not explained by differences in their objective or subjective circumstances. The sentencing judge erred in treating the applicant's circumstances as equivalent to Kidd's; since the applicant had a less serious criminal history and better prospects for rehabilitation, equal sentences were not justified. The failure to consider these favourable subjective circumstances and the error in calculation of pre-sentence custody constituted errors of law justifying appellate intervention.

Court Disposition

Leave to appeal granted; appeal allowed; original sentence quashed and new sentence imposed.

Orders

  • ['Leave to appeal granted; appeal allowed; sentence imposed on 19 November 2004 quashed and in lieu thereof the applicant sentenced to a non-parole period of four years six months imprisonment to date from 9 June 2004, expiring 8 December 2008, with the balance of the term being 18 months, expiring 8 June 2010.'...