JRM v R [2012] NSWCCA 112

JRM v R [2012] NSWCCA 112

The primary judge erred by taking into account matters not particularised in counts 1 and 2, including conduct forming part of other counts and uncharged acts or circumstances, which affected his assessment of objective seriousness and the concurrency of sentences. The errors necessitated resentencing; appropriate sentences were fixed without those errors, with partial accumulation recognising the offences were separate but not of the highest category.

Jurisdiction
Australia
Judgment Date
04 June 2012
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Judgment on Appeal Against Sentence
Outcome
Appeal allowed; sentences quashed for counts 1 and 2; resentencing ordered for those counts; parole eligibility recorded.
Legal Topics
['sentencing' 'objective Seriousness' 'representative Offences' 'accumulation of Sentences']
['criminal Law'] ['sentencing' 'objective Seriousness' 'representative Offences' 'accumulation of Sentences']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal Judgment on Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of offences 1 and 2 by taking into account irrelevant considerations' "Whether the judge erred in assessing the seriousness as 'above the mid-range' and 'somewhere in the middle of the mid to high range'"]

Ratio Decidendi

The primary judge erred by taking into account matters not particularised in counts 1 and 2, including conduct forming part of other counts and uncharged acts or circumstances, which affected his assessment of objective seriousness and the concurrency of sentences. The errors necessitated resentencing; appropriate sentences were fixed without those errors, with partial accumulation recognising the offences were separate but not of the highest category.

Court Disposition

Appeal allowed; sentences quashed for counts 1 and 2; resentencing ordered for those counts; parole eligibility recorded.

Orders

  • ['(1) Allow the appeal.' '(2) Quash the sentences imposed by Garling DCJ on 15 October 2010 in respect of Counts 1 and 2 and in lieu thereof re-sentence the applicant as follows: (a) In respect of Count 2, sentence the applicant to imprisonment for a non-parole period of 4 years commencing on 16 November 2011...