DU v R [2022] NSWCCA 149

DU v R [2022] NSWCCA 149

The sentence was affected by error because the sentencing judge found special circumstances relating to the appellant's reintegration into society but imposed a non-parole period equal to 75% of the total sentence, thereby failing to give effect to that finding. The Court resentenced the appellant, taking into account the objective seriousness of the offences, the appellant's deprived and dysfunctional background, parity with NR, a 12% guilty plea discount and an additional 8% discount for assistance, and concluded that an aggregate sentence of 13 years and 6 months with a non-parole period of 9 years was appropriate.

Jurisdiction
Australia
Judgment Date
17 August 2022
Procedural Posture
Sentence Appeal / Application for Leave to Appeal Against Sentence After Expiry of Filing Period; Appeal Upheld and Appellant Resentenced
Outcome
Time extended, leave to appeal granted, appeal upheld, original sentence quashed, and appellant resentenced to an aggregate term of imprisonment of 13 years and 6 months with a non-parole period of 9 years commencing on 16 September 2014.
Legal Topics
['special Circumstances' 'non Parole Period' 'assistance to Law Enforcement Authorities' 'co Offender Parity' 'manifest Excess' 'aggregate Sentence']
['criminal Law' 'sentencing'] ['special Circumstances' 'non Parole Period' 'assistance to Law Enforcement Authorities' 'co Offender Parity' 'manifest Excess' 'aggregate Sentence']

Case Brief

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Procedural Posture

Sentence Appeal / Application for Leave to Appeal Against Sentence After Expiry of Filing Period; Appeal Upheld and Appellant Resentenced

Legal Issues

  1. 1 ['Whether the sentencing judge erred by finding special circumstances but imposing a non-parole period that reflected the statutory ratio.' 'Whether the appellant should be resentenced after error was established.' "Whether the appellant should receive an additional discount for assistance given to the prosecution in NR's trial." 'Whether parity with co-offender NR affected the appropriate indicative and aggregate sentences.']

Ratio Decidendi

The sentence was affected by error because the sentencing judge found special circumstances relating to the appellant's reintegration into society but imposed a non-parole period equal to 75% of the total sentence, thereby failing to give effect to that finding. The Court resentenced the appellant, taking into account the objective seriousness of the offences, the appellant's deprived and dysfunctional background, parity with NR, a 12% guilty plea discount and an additional 8% discount for assistance, and concluded that an aggregate sentence of 13 years and 6 months with a non-parole period of 9 years was appropriate.

Court Disposition

Time extended, leave to appeal granted, appeal upheld, original sentence quashed, and appellant resentenced to an aggregate term of imprisonment of 13 years and 6 months with a non-parole period of 9 years commencing on 16 September 2014.

Orders

  • ['Extend the time for the filing of an application for leave to appeal to 21 December 2021.' 'Grant leave to appeal.' 'Appeal upheld.' 'Quash the sentence imposed by Delaney ADCJ on 19 October 2016.' 'In lieu thereof, impose an aggregate term of imprisonment of 13 years and 6 months with a non-parole period of 9...