Potts v R [2017] NSWCCA 10

Potts v R [2017] NSWCCA 10

The sentencing judge erred by treating the five-year standard non-parole period as applicable to an attempted aggravated break, enter and steal offence. Because that standard non-parole period did not apply to an attempt and the reference may have affected the instinctive synthesis, the appeal was allowed and the applicant resentenced. A head sentence of 3 years and 4 months with a non-parole period of 2 years and 6 months was warranted, and no finding of special circumstances reducing the non-parole period was made because it would serve no practical purpose after expiry of the non-parole period and was not otherwise justified.

Jurisdiction
Australia
Judgment Date
15 February 2017
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal Against Sentence in the Court of Criminal Appeal From the District Court at Parramatta
Outcome
Leave to appeal granted; appeal against sentence allowed; sentence quashed; applicant resentenced to a non-parole period of 2 years and 6 months from 24 April 2014, expiring 23 October 2016, with a parole period of 10 months expiring 23 August 2017.
Legal Topics
['appeal Against Sentence' 'attempted Aggravated Break, Enter and Steal' 'standard Non Parole Period' 'special Circumstances' 'resentencing' 'crimes (sentencing Procedure) Act 1999 (nsw), S 44']
['criminal Law' 'sentencing'] ['appeal Against Sentence' 'attempted Aggravated Break, Enter and Steal' 'standard Non Parole Period' 'special Circumstances' 'resentencing' 'crimes (sentencing Procedure) Act 1999 (nsw), S 44']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal Against Sentence in the Court of Criminal Appeal From the District Court at Parramatta

Legal Issues

  1. 1 ['Whether the sentencing judge erred by referring to and taking into account a standard non-parole period for an attempted aggravated break, enter and steal offence.' 'Whether the demonstrated error required the Court to exercise the sentencing discretion afresh.' 'Whether special circumstances should be found to vary the statutory ratio between the non-parole period and the balance of the sentence on resentencing.' 'What sentence should be imposed on the applicant for attempted aggravated break, enter and steal.']

Ratio Decidendi

The sentencing judge erred by treating the five-year standard non-parole period as applicable to an attempted aggravated break, enter and steal offence. Because that standard non-parole period did not apply to an attempt and the reference may have affected the instinctive synthesis, the appeal was allowed and the applicant resentenced. A head sentence of 3 years and 4 months with a non-parole period of 2 years and 6 months was warranted, and no finding of special circumstances reducing the non-parole period was made because it would serve no practical purpose after expiry of the non-parole period and was not otherwise justified.

Court Disposition

Leave to appeal granted; appeal against sentence allowed; sentence quashed; applicant resentenced to a non-parole period of 2 years and 6 months from 24 April 2014, expiring 23 October 2016, with a parole period of 10 months expiring 23 August 2017.

Orders

  • ['Leave to appeal granted.' 'Appeal against sentence allowed.' 'The sentence imposed by Judge Colefax SC upon the applicant on 3 December 2014 is quashed.' 'In its place, the applicant is sentenced to a non-parole period of 2 years and 6 months, to date from 24 April 2014, and which expired on 23 October 2016, with...