Snibson v R [2023] NSWCCA 127

Snibson v R [2023] NSWCCA 127

The original sentencing was vitiated by error because the judge adopted an approach to the standard non-parole period for murder offences that was incorrect under Muldrock, as demonstrated by the judge's reliance on the principles in Way and the arithmetic of the sentence imposed. The approach gave determinative weight to the standard non-parole period, leading to a mechanistic calculation and not a truly independent assessment. The appellate court therefore had to resentence the applicant independently, considering prospects of rehabilitation and other factors, resulting in new sentences for the murders.

Jurisdiction
Australia
Judgment Date
13 June 2023
Procedural Posture
Criminal Appeal / Appeal Against Sentence; Leave to Appeal; Resentencing
Outcome
Appeal upheld. Sentences for counts 2 and 4 quashed. Applicant resentenced for murder charges. Extension of time to file appeal granted. Leave to appeal granted.
Legal Topics
['appeal Against Sentence' 'sentencing Principles' 'standard Non Parole Periods' 'muldrock Error' 'principal in the Second Degree' 'murder' 'specially Aggravated Kidnapping']
['criminal Law'] ['appeal Against Sentence' 'sentencing Principles' 'standard Non Parole Periods' 'muldrock Error' 'principal in the Second Degree' 'murder' 'specially Aggravated Kidnapping']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Sentence; Leave to Appeal; Resentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred in his approach to the significance of the standard non-parole period when sentencing for murder' 'Whether the approach in R v Way was wrongly applied contrary to Muldrock v The Queen' 'Whether error vitiated the original sentence, requiring a resentencing']

Ratio Decidendi

The original sentencing was vitiated by error because the judge adopted an approach to the standard non-parole period for murder offences that was incorrect under Muldrock, as demonstrated by the judge's reliance on the principles in Way and the arithmetic of the sentence imposed. The approach gave determinative weight to the standard non-parole period, leading to a mechanistic calculation and not a truly independent assessment. The appellate court therefore had to resentence the applicant independently, considering prospects of rehabilitation and other factors, resulting in new sentences for the murders.

Court Disposition

Appeal upheld. Sentences for counts 2 and 4 quashed. Applicant resentenced for murder charges. Extension of time to file appeal granted. Leave to appeal granted.

Orders

  • ['Extension of time for the bringing of the appeal to 1 April 2022.' 'Grant leave to appeal.' 'Uphold the appeal.' 'Quash the sentences imposed by Buddin J on 5 September 2008 for Counts 2 and 4.' 'Sentence the applicant as follows: (a) For the murder of Gregory Hosa, a non-parole period of 17 years imprisonment...