Regina v Giddy [2003] NSWCCA 46

Regina v Giddy [2003] NSWCCA 46

The sentence was manifestly excessive because the sentencing judge proceeded on the basis that full-time custody could and should be imposed and failed to consider alternatives to full-time imprisonment. Re-sentencing required consideration of the offence, the applicable maximum penalty including the Local Court maximum in the circumstances, the absence of violence or physical harm, the early guilty plea and immediate admissions, the Applicant's age, medical condition, remorse, delay, lack of prior record, low risk of reoffending and rehabilitation.

Jurisdiction
Australia
Judgment Date
28 February 2003
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence Imposed in the District Court
Outcome
Leave to appeal granted; appeal allowed; sentence set aside; Applicant re-sentenced to 12 months imprisonment, suspended from 26 February 2003 on condition of entering a good behaviour bond until 4 December 2003.
Legal Topics
['aggravated Indecent Assault' 'manifest Excess' 'suspended Sentence' 'alternatives to Full Time Imprisonment' 'early Plea of Guilty' 'delay' 'elderly Offender' 'breach of Position of Trust']
['criminal Law' 'sentencing'] ['aggravated Indecent Assault' 'manifest Excess' 'suspended Sentence' 'alternatives to Full Time Imprisonment' 'early Plea of Guilty' 'delay' 'elderly Offender' 'breach of Position of Trust']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentence of 18 months imprisonment with a 9 month non-parole period was manifestly excessive.' 'Whether the sentencing judge erred by failing to consider alternatives to full-time imprisonment, including suspended imprisonment.' 'What sentence should be imposed after the Court found appellable error.']

Ratio Decidendi

The sentence was manifestly excessive because the sentencing judge proceeded on the basis that full-time custody could and should be imposed and failed to consider alternatives to full-time imprisonment. Re-sentencing required consideration of the offence, the applicable maximum penalty including the Local Court maximum in the circumstances, the absence of violence or physical harm, the early guilty plea and immediate admissions, the Applicant's age, medical condition, remorse, delay, lack of prior record, low risk of reoffending and rehabilitation.

Court Disposition

Leave to appeal granted; appeal allowed; sentence set aside; Applicant re-sentenced to 12 months imprisonment, suspended from 26 February 2003 on condition of entering a good behaviour bond until 4 December 2003.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentence imposed below set aside.' 'In lieu, the Applicant is sentenced to 12 months imprisonment to date from 5/12/02 and to expire on 4/12/03; the operation of such sentence being suspended as from today (26/02/03) on the Applicant entering into a bond to be of good...