Whybrow v R [2008] NSWCCA 270

Whybrow v R [2008] NSWCCA 270

The sentencing judge failed to properly account for extra curial punishment suffered by the applicant in the form of injuries sustained as a result of the offence, necessitating appellate intervention. As errors in the sentencing process were established and the sentences were more severe than warranted in law, the appeal was allowed and sentences re-determined.

Parties
Applicant: Jamie Samuel Whybrow; Respondent: The Crown / R
Jurisdiction
Australia
Judgment Date
19 November 2008
Procedural Posture
Criminal Appeal / Court of Criminal Appeal – Leave to Appeal Against Sentence
Outcome
Appeal allowed. Sentences quashed and applicant resentenced.
Legal Topics
Sentencing, Driving Offences, Aggravated Offences, Appeal Against Sentence
Criminal Law Sentencing Driving Offences Aggravated Offences Appeal Against Sentence

Case Brief

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Parties

Jamie Samuel Whybrow

Applicant

The Crown / R

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal – Leave to Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentencing judge erred by taking into account an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 when it was an element of the offence
  2. 2 Whether the sentencing judge failed to take into account extra curial punishment as a mitigating feature
  3. 3 Whether the sentences imposed were manifestly excessive

Ratio Decidendi

The sentencing judge failed to properly account for extra curial punishment suffered by the applicant in the form of injuries sustained as a result of the offence, necessitating appellate intervention. As errors in the sentencing process were established and the sentences were more severe than warranted in law, the appeal was allowed and sentences re-determined.

Court Disposition

Appeal allowed. Sentences quashed and applicant resentenced.

Orders

  • Grant leave to appeal.
  • Allow the appeal.