R v Tobar; R v JAN [2004] NSWCCA 391

R v Tobar; R v JAN [2004] NSWCCA 391

The sentences were affected by error because the sentencing judge applied the standard non-parole period to guilty pleas and incorrectly gave effect to special circumstances by extending the balance of term instead of reducing the non-parole period in light of the total sentence. The sentences were also manifestly excessive when compared with appropriate starting points and with the sentence reduced for co-offender CP. Parity required the applicants to be treated equally after allowing for Tobar's lesser objective role and JAN's youth. JAN's rehabilitation needs justified detention in a detention centre until age 21 or earlier release on parole.

Jurisdiction
Australia
Judgment Date
19 November 2004
Procedural Posture
Appeal Against Sentences / Applications for Leave to Appeal Against Sentences Imposed in the District Court; Re Sentencing
Outcome
Applications for leave to appeal granted; appeals allowed; District Court sentences quashed; applicants re-sentenced.
Legal Topics
['armed Robbery' 'armed Robbery With Wounding' 'assault With Intent to Rob Whilst Armed' 'form 1 Offences' 'standard Non Parole Period' 'special Circumstances' 'juvenile Offender' 'parity' 'manifest Excess' 'pleas of Guilty']
['criminal Law' 'sentencing' 'criminal Appeal'] ['armed Robbery' 'armed Robbery With Wounding' 'assault With Intent to Rob Whilst Armed' 'form 1 Offences' 'standard Non Parole Period' 'special Circumstances' 'juvenile Offender' 'parity' 'manifest Excess' 'pleas of Guilty']

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Procedural Posture

Appeal Against Sentences / Applications for Leave to Appeal Against Sentences Imposed in the District Court; Re Sentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred by applying the standard non-parole period for armed robbery with wounding to sentences imposed after pleas of guilty.' 'Whether the sentencing judge erred in giving effect to special circumstances by extending the balance of term rather than reducing the non-parole period in the context of the total sentence.' 'Whether the sentences imposed were manifestly excessive.' "Whether parity with the co-offender CP required reductions in the applicants' sentences." 'Whether JAN should serve his sentence in a detention centre beyond the age of 18 years.']

Ratio Decidendi

The sentences were affected by error because the sentencing judge applied the standard non-parole period to guilty pleas and incorrectly gave effect to special circumstances by extending the balance of term instead of reducing the non-parole period in light of the total sentence. The sentences were also manifestly excessive when compared with appropriate starting points and with the sentence reduced for co-offender CP. Parity required the applicants to be treated equally after allowing for Tobar's lesser objective role and JAN's youth. JAN's rehabilitation needs justified detention in a detention centre until age 21 or earlier release on parole.

Court Disposition

Applications for leave to appeal granted; appeals allowed; District Court sentences quashed; applicants re-sentenced.

Orders

  • ['Tobar: Application for leave to appeal granted.' 'Tobar: Appeal allowed.' 'Tobar: Each sentence imposed in the District Court be quashed.' 'Tobar: For armed robbery with wounding, imprisonment with a non-parole period of three years, to commence on 3 November 2003 and expire on 2 November 2006, with a balance of...