KW v R (No 2) [2013] NSWCCA 84

KW v R (No 2) [2013] NSWCCA 84

Because the earlier aggregate non-parole period was 81 per cent of the aggregate head sentence, it did not implement the Court's stated intention that special circumstances affect the aggregate non-parole period. Appropriate circumstances existed under Rule 50C of the Criminal Appeal Rules to set aside Order 3 made on 19 February 2013 and restructure the sentences so as to achieve an aggregate non-parole period of 4 years and 5 months without varying the aggregate head sentence or the individual head sentences.

Jurisdiction
Australia
Judgment Date
22 April 2013
Procedural Posture
Criminal Appeal Sentencing / Crown Application for Variation of Orders; Consequential Orders on the Papers
Outcome
Order 3 made on 19 February 2013 set aside and the applicant re-sentenced.
Legal Topics
['sentencing' 'sexual Offences' 'special Circumstances' 'non Parole Period' 'variation of Orders']
['criminal Law'] ['sentencing' 'sexual Offences' 'special Circumstances' 'non Parole Period' 'variation of Orders']

Case Brief

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Procedural Posture

Criminal Appeal Sentencing / Crown Application for Variation of Orders; Consequential Orders on the Papers

Legal Issues

  1. 1 ["Whether the orders made on 19 February 2013 failed to give effect to the Court's stated intention to give the applicant the benefit of a finding of special circumstances." 'Whether the Court should vary the prior sentencing orders under Rule 50C of the Criminal Appeal Rules.']

Ratio Decidendi

Because the earlier aggregate non-parole period was 81 per cent of the aggregate head sentence, it did not implement the Court's stated intention that special circumstances affect the aggregate non-parole period. Appropriate circumstances existed under Rule 50C of the Criminal Appeal Rules to set aside Order 3 made on 19 February 2013 and restructure the sentences so as to achieve an aggregate non-parole period of 4 years and 5 months without varying the aggregate head sentence or the individual head sentences.

Court Disposition

Order 3 made on 19 February 2013 set aside and the applicant re-sentenced.

Orders

  • ['Order 3 made on 19 February 2013 set aside.' 'In lieu thereof the applicant is sentenced as follows: Count (v): imprisonment for 3 years and 9 months, commencing on 7 April 2010 and expiring on 6 January 2014, with a non-parole period of 2 years and 6 months, expiring on 6 October 2012; Counts (ii)-(iv):...