Fitzgerald v R [2018] NSWCCA 170

Fitzgerald v R [2018] NSWCCA 170

The appeal failed because the sentencing judge gave proper consideration to and rejected alternatives to full-time custody, did not err in treating the Form 1 offence given the concurrent sentences and the treatment of fixed terms as equivalent to non-parole periods, adequately allowed for the guilty pleas, was entitled on the agreed facts to find a significant degree of planning, and imposed sentences that were not manifestly excessive when seriousness, planning, breach of bonds, concurrency, special circumstances and the applicant's subjective case were balanced.

Jurisdiction
Australia
Judgment Date
06 August 2018
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court of NSW
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['aggravated Break, Enter and Steal' 'alternatives to Full Time Custody' 'form 1 Offence' 'guilty Plea Discount' 'objective Seriousness' 'planning' 'manifest Excess']
['criminal Law' 'sentencing'] ['aggravated Break, Enter and Steal' 'alternatives to Full Time Custody' 'form 1 Offence' 'guilty Plea Discount' 'objective Seriousness' 'planning' 'manifest Excess']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge failed to give proper and lawful consideration to whether the sentence could be served by an alternative to full-time custody.' 'Whether the sentencing judge acted on a wrong principle in his treatment of the Form 1 offence.' 'Whether the sentence for count 3 was irrational.' 'Whether the sentencing judge failed to award a discount for pleading guilty in respect of counts 1 and 2.' 'Whether the sentencing judge mistook the facts in concluding that there was a significant degree of planning involved in the offences.' 'Whether the sentences were manifestly excessive.']

Ratio Decidendi

The appeal failed because the sentencing judge gave proper consideration to and rejected alternatives to full-time custody, did not err in treating the Form 1 offence given the concurrent sentences and the treatment of fixed terms as equivalent to non-parole periods, adequately allowed for the guilty pleas, was entitled on the agreed facts to find a significant degree of planning, and imposed sentences that were not manifestly excessive when seriousness, planning, breach of bonds, concurrency, special circumstances and the applicant's subjective case were balanced.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.' 'Time not to count except for 49 days.' 'The sentence will now expire on 16 May 2020 and the non-parole period will expire on 16 June 2019.']