GRAHAM v R [2008] NSWCCA 309

GRAHAM v R [2008] NSWCCA 309

The appeal was allowed because the sentencing judge made material sentencing errors: fixed terms were imposed for s 61J aggravated sexual assault offences despite the standard non-parole period regime; offences 1 and 7 were sentenced on the erroneous basis that they involved grievous bodily harm rather than actual bodily harm; the sentence for offence 3 was impermissibly extended to create a parole period; and the assessment of offences 5 and 6 as above mid-range seriousness and the resulting sentences were excessive. Resentencing was required, applying proper offence characterisation, mid-range assessment for offences 5 and 6, guilty plea discounts, totality, and an appropriate parole...

Jurisdiction
Australia
Judgment Date
04 December 2008
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted; appeal against sentence allowed generally; sentences quashed and replaced with new sentences.
Legal Topics
['sexual Assault Offences' 'aggravated Robbery' 'manifest Excess' 'standard Non Parole Periods' 'fixed Term Imprisonment' 'totality' 'guilty Plea Discount']
['criminal Law' 'sentencing'] ['sexual Assault Offences' 'aggravated Robbery' 'manifest Excess' 'standard Non Parole Periods' 'fixed Term Imprisonment' 'totality' 'guilty Plea Discount']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether individual sentences imposed for the nine offences were manifestly excessive.' 'Whether the sentencing judge erred in accumulating the individual sentences and imposing an aggregate sentence and non-parole period that were manifestly excessive.' 'Whether the sentencing judge erred by imposing fixed terms for aggravated sexual assault offences under s 61J of the Crimes Act for which a standard non-parole period applied.' 'Whether the sentencing judge erred in assessing the aggravated sexual assault offences as greater than mid-range objective seriousness.' 'Whether the sentencing judge impermissibly extended the sentence for offence 3 to create an adequate parole period.' 'Whether the sentencing judge sentenced offences 1 and 7 on the erroneous basis that they involved grievous bodily harm rather than actual bodily harm.']

Ratio Decidendi

The appeal was allowed because the sentencing judge made material sentencing errors: fixed terms were imposed for s 61J aggravated sexual assault offences despite the standard non-parole period regime; offences 1 and 7 were sentenced on the erroneous basis that they involved grievous bodily harm rather than actual bodily harm; the sentence for offence 3 was impermissibly extended to create a parole period; and the assessment of offences 5 and 6 as above mid-range seriousness and the resulting sentences were excessive. Resentencing was required, applying proper offence characterisation, mid-range assessment for offences 5 and 6, guilty plea discounts, totality, and an appropriate parole...

Court Disposition

Leave to appeal granted; appeal against sentence allowed generally; sentences quashed and replaced with new sentences.

Orders

  • ['For offence 1, a fixed term of imprisonment of 6 years commencing on 6 January 2006 and expiring on 5 January 2012.' 'For offence 2, a fixed term of imprisonment of 3 years 7 months commencing on 6 January 2006 and expiring on 5 August 2009.' 'For offence 3, a fixed term of imprisonment of 3 years 9 months...