VAN DER BAAN v R [2012] NSWCCA 5

VAN DER BAAN v R [2012] NSWCCA 5

The original sentences were within range and not manifestly excessive, but a greater degree of concurrency should have been applied in respect of the sentences for the offences against SP to properly give effect to the principle of totality. Accordingly, sentences for Counts 5, 6, and 7 were adjusted to commence earlier, increasing concurrency and reducing the total effective sentence.

Parties
Applicant: Jason Anthony VAN DER BAAN; Respondent: Regina
Jurisdiction
Australia
Judgment Date
01 August 2012
Procedural Posture
Appeal Against Sentence / Court of Criminal Appeal
Outcome
Appeal upheld in part
Legal Topics
Sentencing, Appeal Against Sentence, Sexual Assault Offences, Totality Principle, Manifest Excess
Criminal Law Sentencing Appeal Against Sentence Sexual Assault Offences Totality Principle Manifest Excess

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Parties

Jason Anthony VAN DER BAAN

Applicant

Regina

Respondent

Procedural Posture

Appeal Against Sentence / Court of Criminal Appeal

Legal Issues

  1. 1 Whether sentencing judge erred in finding that offences against one victim aggravated by earlier offending
  2. 2 Whether overall sentence manifestly excessive in circumstances of the case
  3. 3 Whether error in approach to concurrence of sentences

Ratio Decidendi

The original sentences were within range and not manifestly excessive, but a greater degree of concurrency should have been applied in respect of the sentences for the offences against SP to properly give effect to the principle of totality. Accordingly, sentences for Counts 5, 6, and 7 were adjusted to commence earlier, increasing concurrency and reducing the total effective sentence.

Court Disposition

Appeal upheld in part

Orders

  • Leave to appeal against the sentences imposed by the District Court on 5 February 2010 be granted.
  • The appeal upheld in part.