DS v R (No 2) [2013] NSWCCA 313

DS v R (No 2) [2013] NSWCCA 313

The Court had jurisdiction under Criminal Appeal Rules, r 50C because the Crown's letter was made within 14 days of entry of the orders and, under r 2, the form of the application was not a matter of substance. The correct standard non-parole period for count 3 was 8 years, not 5 years. Applying Muldrock, the 8-year standard non-parole period was one of the two legislative guideposts, together with the 10-year maximum penalty, and a different sentence was warranted from that imposed on 26 July 2012.

Jurisdiction
Australia
Judgment Date
13 December 2013
Procedural Posture
Criminal Appeal Sentencing Application / Application to Set Aside or Vary Sentence Imposed by the Court of Criminal Appeal
Outcome
Application allowed; sentence on count 3 vacated and appellant re-sentenced on count 3.
Legal Topics
['application to Vary Sentence' 'standard Non Parole Period' 're Sentencing' 'criminal Appeal Rules, R 50 C' 'muldrock V the Queen']
['criminal Law' 'sentencing' 'criminal Procedure'] ['application to Vary Sentence' 'standard Non Parole Period' 're Sentencing' 'criminal Appeal Rules, R 50 C' 'muldrock V the Queen']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Criminal Appeal Sentencing Application / Application to Set Aside or Vary Sentence Imposed by the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the Crown's letter of 6 August 2012 was sufficient to engage the Court's jurisdiction under Criminal Appeal Rules, r 50C." 'Whether the standard non-parole period applicable to count 3 was 8 years rather than 5 years.' 'Whether the appellant should be re-sentenced because the earlier re-sentence was imposed on the basis of an erroneous concession about the standard non-parole period.']

Ratio Decidendi

The Court had jurisdiction under Criminal Appeal Rules, r 50C because the Crown's letter was made within 14 days of entry of the orders and, under r 2, the form of the application was not a matter of substance. The correct standard non-parole period for count 3 was 8 years, not 5 years. Applying Muldrock, the 8-year standard non-parole period was one of the two legislative guideposts, together with the 10-year maximum penalty, and a different sentence was warranted from that imposed on 26 July 2012.

Court Disposition

Application allowed; sentence on count 3 vacated and appellant re-sentenced on count 3.

Orders

  • ['Vacate the sentence imposed on the appellant by this Court on 26 July 2012 in respect of count 3.' 'Re-sentence the appellant in respect of count 3 to a non-parole period of 4 years and 6 months to commence on 20 May 2010 and to expire on 19 November 2014 and an additional term of 1 year 6 months commencing on 20...