JC1 v R; GN v R [2021] NSWCCA 183

JC1 v R; GN v R [2021] NSWCCA 183

JC1's appeal succeeded because the sentencing judge addressed totality only as between the subject offences and failed to deal with the earlier control order, while the commencement dates for GN and JC2 did take account of custody under other control orders; that anomaly produced an unjust disparity and a justifiable sense of grievance, requiring re-sentence by the Court. GN's appeal failed because, reading the remarks as a whole, the sentencing judge did not engage in an impermissible two-stage use of the Henry guideline and gave appropriate consideration to GN's youth, immaturity, deprived background, rehabilitation and the reduced significance of general deterrence.

Jurisdiction
Australia
Judgment Date
09 August 2021
Procedural Posture
Criminal Appeal Against Sentence / Applications for Leave to Appeal Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal was granted to both applicants; JC1's appeal was upheld and he was re-sentenced, while GN's appeal was dismissed.
Legal Topics
['armed Robbery' 'assault With Intent to Rob Whilst Armed' 'larceny' 'totality Principle' 'parity Between Co Offenders' 'guideline Judgments' 'sentencing Young Offenders' 'non Parole Periods']
['criminal Law' 'sentencing' 'criminal Appeals'] ['armed Robbery' 'assault With Intent to Rob Whilst Armed' 'larceny' 'totality Principle' 'parity Between Co Offenders' 'guideline Judgments' 'sentencing Young Offenders' 'non Parole Periods']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Applications for Leave to Appeal Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in failing to take into account the totality principle by not considering JC1's earlier sentence for later offending." 'Whether insufficient disparity between the aggregate sentence imposed on JC1 and the sentences imposed on co-offenders JC2 and GN gave JC1 a justifiable sense of grievance.' 'Whether the sentencing judge impermissibly used the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 when sentencing GN.' "Whether the sentencing judge erred by not properly considering GN's youth in assessing moral culpability, general deterrence and retribution."]

Ratio Decidendi

JC1's appeal succeeded because the sentencing judge addressed totality only as between the subject offences and failed to deal with the earlier control order, while the commencement dates for GN and JC2 did take account of custody under other control orders; that anomaly produced an unjust disparity and a justifiable sense of grievance, requiring re-sentence by the Court. GN's appeal failed because, reading the remarks as a whole, the sentencing judge did not engage in an impermissible two-stage use of the Henry guideline and gave appropriate consideration to GN's youth, immaturity, deprived background, rehabilitation and the reduced significance of general deterrence.

Court Disposition

Leave to appeal was granted to both applicants; JC1's appeal was upheld and he was re-sentenced, while GN's appeal was dismissed.

Orders

  • ['In relation to the appeal by JC1: Leave to appeal granted.' 'In relation to the appeal by JC1: Uphold the appeal.' 'In relation to the appeal by JC1: Quash the sentence imposed by Delaney ADCJ on 30 October 2019.' 'In relation to the appeal by JC1: In lieu, sentence the appellant to an aggregate sentence of four...