Riley v R [2019] NSWCCA 92

Riley v R [2019] NSWCCA 92

The sentencing judge's remarks suggested that the applicant's deprived background gave only some mitigation because she had had years to overcome it, which was inconsistent with the requirement in Bugmy to give full weight to the continuing effects of profound deprivation. That error required resentencing. On resentencing, the offending was well below the mid-range, the applicant's deprived background and mental health and drug issues remained powerfully relevant, but deterrence and community protection were also significant; a lesser sentence was warranted.

Jurisdiction
Australia
Judgment Date
10 May 2019
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From a District Court Sentence
Outcome
Leave to appeal granted, appeal allowed, sentence quashed and the applicant resentenced to a lesser sentence.
Legal Topics
['aggravated Enter Dwelling With Intent to Commit a Serious Indictable Offence' 'form 1 Offences' 'deprived Background and Moral Culpability' 'bugmy Principles' 'double Counting of Aggravating Factors' 'resentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravated Enter Dwelling With Intent to Commit a Serious Indictable Offence' 'form 1 Offences' 'deprived Background and Moral Culpability' 'bugmy Principles' 'double Counting of Aggravating Factors' 'resentencing']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

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

Legal Issues

  1. 1 ["Whether the sentencing judge erred in applying the principles applicable to the applicant's deprived background." 'Whether the sentencing judge erred in considering the presence of a person in the dwelling as an aggravating circumstance when it was an element of the offence.' 'Whether a lesser sentence was warranted on resentencing.']

Ratio Decidendi

The sentencing judge's remarks suggested that the applicant's deprived background gave only some mitigation because she had had years to overcome it, which was inconsistent with the requirement in Bugmy to give full weight to the continuing effects of profound deprivation. That error required resentencing. On resentencing, the offending was well below the mid-range, the applicant's deprived background and mental health and drug issues remained powerfully relevant, but deterrence and community protection were also significant; a lesser sentence was warranted.

Court Disposition

Leave to appeal granted, appeal allowed, sentence quashed and the applicant resentenced to a lesser sentence.

Orders

  • ['Leave to appeal.' 'Allow the appeal.' 'Quash the sentence imposed by Judge King SC in the District Court on 31 May 2018, in lieu, sentence the appellant to a non-parole period of two years and two months commencing 15 December 2017 and expiring 14 February 2020 with a balance of term of ten months expiring 14...