KG v R [2012] NSWCCA 10

KG v R [2012] NSWCCA 10

By majority, the sentencing judge erred in applying a starting point for the applicant only six months below the starting points for the older co-offenders. Given the applicant was only just over 17, was a first offender, and had a demonstrated vulnerability to being led by others and to peer group pressure, the difference between his sentence and the sentences imposed on Atcheson and Johnson was appellably insufficient. The sentence was set aside and the applicant was resentenced to a non-parole period of 18 months with a balance of term of 12 months.

Jurisdiction
Australia
Judgment Date
06 February 2012
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Sentence Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence set aside; applicant resentenced and directed to be released to parole forthwith.
Legal Topics
['assault With Intent to Rob Whilst in Company, With Wounding' 'manifest Excess' 'standard Non Parole Period' 'children in Criminal Proceedings' 'parity Between Co Offenders' 'juvenile Offender']
['criminal Law' 'sentencing'] ['assault With Intent to Rob Whilst in Company, With Wounding' 'manifest Excess' 'standard Non Parole Period' 'children in Criminal Proceedings' 'parity Between Co Offenders' 'juvenile Offender']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the sentencing judge failed to have sufficient regard to the applicant's age and the principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW)." 'Whether the sentencing judge made inappropriate reference to the standard non-parole period.' 'Whether the sentence was manifestly excessive.' 'Whether the sentence gave rise to appealable disparity when compared with the sentences imposed on co-offenders.']

Ratio Decidendi

By majority, the sentencing judge erred in applying a starting point for the applicant only six months below the starting points for the older co-offenders. Given the applicant was only just over 17, was a first offender, and had a demonstrated vulnerability to being led by others and to peer group pressure, the difference between his sentence and the sentences imposed on Atcheson and Johnson was appellably insufficient. The sentence was set aside and the applicant was resentenced to a non-parole period of 18 months with a balance of term of 12 months.

Court Disposition

Leave to appeal granted; appeal allowed; sentence set aside; applicant resentenced and directed to be released to parole forthwith.

Orders

  • ['Grant the applicant leave to appeal.' 'Allow the appeal and set aside the sentence imposed by Colefax DCJ on 17 December 2010.' 'Resentence the applicant to a non-parole period of 18 months to date from 16 June 2010 and expire on 15 December 2011.' 'Resentence the applicant to a balance of term of 12 months to...