R v WEST, Justin [2011] NSWCCA 91

R v WEST, Justin [2011] NSWCCA 91

The majority held that the 2 year non-parole period was manifestly inadequate. Although special circumstances were available because of the respondent's youth, immaturity, first imprisonment, substance abuse and need for supervised rehabilitation, those matters could not justify reducing the non-parole period to 33% of a 6 year head sentence. The sentencing judge's repeated emphasis on the absence of intent to kill, failure to refer to general deterrence, and undue emphasis on subjective circumstances resulted in a non-parole period below that required to reflect the objective gravity of the alcohol-fuelled manslaughter and the need for deterrence.

Jurisdiction
Australia
Judgment Date
12 April 2011
Procedural Posture
Crown Appeal Against Sentence for Manslaughter / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court at Orange
Outcome
By majority, Crown appeal allowed, sentence quashed and respondent resentenced to imprisonment with a non-parole period of 3 years and a balance of term of 3 years.
Legal Topics
['crown Sentence Appeal' 'manslaughter by Unlawful and Dangerous Act' 'manifest Inadequacy of Non Parole Period' 'special Circumstances' 'general Deterrence' 'youth and Rehabilitation' 'alcohol and Drug Related Violence']
['criminal Law' 'sentencing'] ['crown Sentence Appeal' 'manslaughter by Unlawful and Dangerous Act' 'manifest Inadequacy of Non Parole Period' 'special Circumstances' 'general Deterrence' 'youth and Rehabilitation' 'alcohol and Drug Related Violence']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence for Manslaughter / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court at Orange

Legal Issues

  1. 1 ['Whether the non-parole period of 2 years for manslaughter was manifestly inadequate.' "Whether the sentencing judge failed to reflect the objective gravity of the respondent's crime." "Whether undue emphasis was given to the respondent's subjective case, including youth and rehabilitation." 'Whether special circumstances justified reducing the non-parole period to 33% of the head sentence.' 'Whether the Court should decline to intervene on discretionary grounds despite established error.']

Ratio Decidendi

The majority held that the 2 year non-parole period was manifestly inadequate. Although special circumstances were available because of the respondent's youth, immaturity, first imprisonment, substance abuse and need for supervised rehabilitation, those matters could not justify reducing the non-parole period to 33% of a 6 year head sentence. The sentencing judge's repeated emphasis on the absence of intent to kill, failure to refer to general deterrence, and undue emphasis on subjective circumstances resulted in a non-parole period below that required to reflect the objective gravity of the alcohol-fuelled manslaughter and the need for deterrence.

Court Disposition

By majority, Crown appeal allowed, sentence quashed and respondent resentenced to imprisonment with a non-parole period of 3 years and a balance of term of 3 years.

Orders

  • ['Crown appeal allowed.' 'Quash sentence imposed in the District Court.' 'In its place, the Respondent is sentenced to imprisonment by way of a non-parole period of three years, commencing on 4 September 2009 and expiring on 3 September 2012, with a balance of term of three years commencing on 4 September 2012 and...