R v HERNANDO [2005] NSWCCA 59

R v HERNANDO [2005] NSWCCA 59

The sentencing judge did refer to aggravating elements that were ingredients of the offences, making out the first ground. However, the second ground was not made out as the applicant's breach of parole and its revocation was due to multiple failures, not primarily the commission of the offences, and the sentencing judge's decision was considered lenient in light of applicant's history and offences. Therefore, the appeal was dismissed pursuant to s 6(3) of the Criminal Appeal Act.

Jurisdiction
Australia
Judgment Date
03 February 2005
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Appeal Against Sentence
Outcome
Appeal dismissed
Legal Topics
['sentencing' 'armed Robbery' 'parole' 'aggravating Factors' 'concurrency']
['criminal Law'] ['sentencing' 'armed Robbery' 'parole' 'aggravating Factors' 'concurrency']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge wrongly took into account elements of the offences as aggravating features contrary to s 21A(2) of the Crimes (Sentencing Procedure) Act' 'Whether the sentencing judge erred by not backdating the sentence to be partially concurrent with expired balance of parole']

Ratio Decidendi

The sentencing judge did refer to aggravating elements that were ingredients of the offences, making out the first ground. However, the second ground was not made out as the applicant's breach of parole and its revocation was due to multiple failures, not primarily the commission of the offences, and the sentencing judge's decision was considered lenient in light of applicant's history and offences. Therefore, the appeal was dismissed pursuant to s 6(3) of the Criminal Appeal Act.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed pursuant to s 6(3) of the Criminal Appeal Act']