R v Hernando [2002] NSWCCA 489

R v Hernando [2002] NSWCCA 489

Although the six month non-parole period for the more serious knife robbery failed to reflect the criminality of the offence and revealed appellable error, it would be unjust to return the respondent to prison where the Crown gave no notice of dissatisfaction until about two months after he had been released and had served the fixed term for one offence and the minimum term for the other, and where his youth, first imprisonment, rehabilitation prospects and the distress caused by the delayed appeal supported exercising the residual discretion not to interfere.

Jurisdiction
Australia
Judgment Date
10 December 2002
Procedural Posture
Criminal Crown Appeal Against Sentence for Robbery in Company / Court of Criminal Appeal Appeal From District Court Sentence
Outcome
Appeal dismissed.
Legal Topics
['robbery in Company' 'manifest Inadequacy of Sentence' 'crown Appeal Against Sentence' 'residual Discretion Not to Interfere' 'delay in Filing and Hearing Crown Appeals' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['robbery in Company' 'manifest Inadequacy of Sentence' 'crown Appeal Against Sentence' 'residual Discretion Not to Interfere' 'delay in Filing and Hearing Crown Appeals' 'non Parole Period']

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Procedural Posture

Criminal Crown Appeal Against Sentence for Robbery in Company / Court of Criminal Appeal Appeal From District Court Sentence

Legal Issues

  1. 1 ['Whether the sentences imposed for two counts of robbery in company were manifestly inadequate or otherwise affected by appellable error.' 'Whether the non-parole period appropriately reflected the criminality involved in the offences.' 'Whether the Court should exercise its residual discretion under Criminal Appeal Act 1912 (NSW) s 5D not to intervene despite appellable error because of delay and prejudice to the respondent.']

Ratio Decidendi

Although the six month non-parole period for the more serious knife robbery failed to reflect the criminality of the offence and revealed appellable error, it would be unjust to return the respondent to prison where the Crown gave no notice of dissatisfaction until about two months after he had been released and had served the fixed term for one offence and the minimum term for the other, and where his youth, first imprisonment, rehabilitation prospects and the distress caused by the delayed appeal supported exercising the residual discretion not to interfere.

Court Disposition

Appeal dismissed.

Orders

  • ['The Crown appeal against sentence was dismissed.']