Herbert v R [2015] NSWCCA 172

Herbert v R [2015] NSWCCA 172

The sentencing judge erred by giving the applicant's voluntary attendance and disclosure significance only as evidence of contrition and rehabilitation and by denying any practical additional leniency, even though at the time the applicant went to police there was no suggestion he was a suspect and the DNA evidence arose only after he provided a sample. Public interest required some recognition for the prompt voluntary disclosure. However, the sentencing judge did not err in partially accumulating the sentences, because each sexual offence made an additional contribution to the applicant's total criminality. The appeal was allowed on the Ellis discount ground, the original sentences were...

Jurisdiction
Australia
Judgment Date
29 June 2015
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentences Imposed in the District Court; Appeal and Resentencing in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; District Court sentences quashed; applicant resentenced to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years 3 months dating from 29 October 2011.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'voluntary Disclosure of Guilt' 'ellis Discount' 'assistance to Authorities' 'guilty Plea Discount' 'concurrency and Accumulation of Sentences' 'aggregate Sentence' 'special Circumstances']
['criminal Law' 'sentencing'] ['aggravated Sexual Intercourse Without Consent' 'voluntary Disclosure of Guilt' 'ellis Discount' 'assistance to Authorities' 'guilty Plea Discount' 'concurrency and Accumulation of Sentences' 'aggregate Sentence' 'special Circumstances']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentences Imposed in the District Court; Appeal and Resentencing in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to allow a separate discount or added leniency for the applicant's voluntary disclosure of guilt to police." 'Whether the sentencing judge erred in structuring the sentences by partially accumulating the individual sentences for the three offences.']

Ratio Decidendi

The sentencing judge erred by giving the applicant's voluntary attendance and disclosure significance only as evidence of contrition and rehabilitation and by denying any practical additional leniency, even though at the time the applicant went to police there was no suggestion he was a suspect and the DNA evidence arose only after he provided a sample. Public interest required some recognition for the prompt voluntary disclosure. However, the sentencing judge did not err in partially accumulating the sentences, because each sexual offence made an additional contribution to the applicant's total criminality. The appeal was allowed on the Ellis discount ground, the original sentences were...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentences quashed; applicant resentenced to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years 3 months dating from 29 October 2011.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentences imposed in the District Court on 18 April 2013 quashed.' 'Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, impose an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years 3 months to date from 29 October 2011. The non-parole...