Elwood v R [2019] NSWCCA 315

Elwood v R [2019] NSWCCA 315

Ground 3 was established because the sentencing judge found special circumstances, including matters not confined to accumulation, but did not give fresh consideration to the relationship between the non-parole period and balance of term after partial accumulation or explain why the amelioration reflected in the aggregate sentence ratio was not carried into the effective sentence. The sentencing discretion miscarried and the applicant was re-sentenced. Grounds 1 and 2 were rejected, and Ground 4 did not need to be addressed.

Jurisdiction
Australia
Judgment Date
20 December 2019
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court
Outcome
Leave to appeal granted; appeal allowed; aggregate sentence quashed; applicant re-sentenced to a lesser aggregate term.
Legal Topics
['sexual Intercourse Without Consent' 'contravention of Apprehended Domestic Violence Order' 'guilty Pleas' 'objective Seriousness' 'intellectual Disability in Sentencing' 'special Circumstances' 'non Parole Period' 'aggregate Sentence' 'manifest Excess']
['criminal Law' 'sentencing'] ['sexual Intercourse Without Consent' 'contravention of Apprehended Domestic Violence Order' 'guilty Pleas' 'objective Seriousness' 'intellectual Disability in Sentencing' 'special Circumstances' 'non Parole Period' 'aggregate Sentence' 'manifest Excess']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred in the assessment of the objective seriousness of the sexual intercourse without consent offence.' "Whether the sentencing judge erred in his approach to the applicant's intellectual disability." 'Whether the sentencing judge erred by failing to give effect to his findings of special circumstances in relation to the overall effective sentence.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

Ground 3 was established because the sentencing judge found special circumstances, including matters not confined to accumulation, but did not give fresh consideration to the relationship between the non-parole period and balance of term after partial accumulation or explain why the amelioration reflected in the aggregate sentence ratio was not carried into the effective sentence. The sentencing discretion miscarried and the applicant was re-sentenced. Grounds 1 and 2 were rejected, and Ground 4 did not need to be addressed.

Court Disposition

Leave to appeal granted; appeal allowed; aggregate sentence quashed; applicant re-sentenced to a lesser aggregate term.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The aggregate sentence imposed in the District Court on 6 December 2018 is quashed.' 'In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 3 years and 2 months comprised of a non-parole period of 1 year and 8 months. The non-parole period...