Gray v R [2018] NSWCCA 39

Gray v R [2018] NSWCCA 39

The sentencing judge made a material error of principle by treating the multiplicity of the property offences as an aggravating factor under s 21A(2)(m) for each property offence. That error affected the assessment of objective seriousness and caused the sentencing discretion to miscarry. On re-sentence, adopting the lower-level objective seriousness of the property offences while recognising conditional liberty, prior record, deterrence, totality, partial accumulation and the 25 per cent guilty plea discount, a lesser aggregate sentence and reduced licence disqualification were warranted.

Jurisdiction
Australia
Judgment Date
06 July 2018
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court of New South Wales; Leave Granted, Appeal Allowed and Sentence Re Exercised
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to a lesser aggregate term of imprisonment and reduced licence disqualification.
Legal Topics
['break and Enter With Intent to Commit Serious Indictable Offence' 'break, Enter and Steal' 'reckless Driving' 'guilty Pleas' 'aggregate Sentence' 'objective Seriousness' 'aggravating Factors' 'conditional Liberty' 'licence Disqualification' 'manifest Excess']
['criminal Law' 'sentencing' 'road Transport'] ['break and Enter With Intent to Commit Serious Indictable Offence' 'break, Enter and Steal' 'reckless Driving' 'guilty Pleas' 'aggregate Sentence' 'objective Seriousness' 'aggravating Factors' 'conditional Liberty' 'licence Disqualification' 'manifest Excess']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court of New South Wales; Leave Granted, Appeal Allowed and Sentence Re Exercised

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of the property offences by treating the multiplicity of offences as an aggravating factor under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the sentencing judge erred in applying Frigiani v R [2007] NSWCCA 81 to the reckless driving offence.' 'Whether the aggregate sentence imposed was manifestly excessive.' 'What sentence and licence disqualification should be imposed if the sentencing discretion were re-exercised.']

Ratio Decidendi

The sentencing judge made a material error of principle by treating the multiplicity of the property offences as an aggravating factor under s 21A(2)(m) for each property offence. That error affected the assessment of objective seriousness and caused the sentencing discretion to miscarry. On re-sentence, adopting the lower-level objective seriousness of the property offences while recognising conditional liberty, prior record, deterrence, totality, partial accumulation and the 25 per cent guilty plea discount, a lesser aggregate sentence and reduced licence disqualification were warranted.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to a lesser aggregate term of imprisonment and reduced licence disqualification.

Orders

  • ['Grant leave to appeal and allow the appeal.' 'Quash the sentence passed in the District Court on 16 December 2016 and instead sentence the applicant to an aggregate term of imprisonment under s 53A Crimes (Sentencing Procedure) Act 1999 (NSW), having a non-parole period of 3 years and 3 months commencing on 16...