R v Shaw [2000] NSWCCA 326

R v Shaw [2000] NSWCCA 326

The armed robbery sentence disclosed no discretionary error because, even assuming the offence broadly fell within the R v Henry guideline category, the applicant's substantial criminal history, offending while on parole, the intensity of the syringe threat, and the additional robbery offence taken into account justified a sentence above the guideline range. The breaking and entering sentence, however, was outside the legitimate range of discretion given the limited damage, absence of property taken and absence of an alarmed victim, even allowing for the applicant's record and offending while on bail; it had to be set aside and replaced with a fixed concurrent term of two years imprisonment.

Jurisdiction
Australia
Judgment Date
23 August 2000
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed in part; sentence for breaking and entering set aside and substituted; armed robbery sentence left undisturbed.
Legal Topics
['armed Robbery' 'breaking and Entering With Intent to Steal' 'guideline Judgments' 'offence Taken Into Account on Sentence' 'antecedent Criminal History' 'offending While on Parole' 'offending While on Bail']
['criminal Law' 'sentencing'] ['armed Robbery' 'breaking and Entering With Intent to Steal' 'guideline Judgments' 'offence Taken Into Account on Sentence' 'antecedent Criminal History' 'offending While on Parole' 'offending While on Bail']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentence for armed robbery should be reduced by reference to the guideline judgment in R v Henry (1999) 46 NSWLR 346.' "Whether the sentence for breaking and entering with intent to steal was outside the legitimate range of the sentencing judge's discretion." "The relevance of the applicant's criminal history and offending while on parole or bail to sentence."]

Ratio Decidendi

The armed robbery sentence disclosed no discretionary error because, even assuming the offence broadly fell within the R v Henry guideline category, the applicant's substantial criminal history, offending while on parole, the intensity of the syringe threat, and the additional robbery offence taken into account justified a sentence above the guideline range. The breaking and entering sentence, however, was outside the legitimate range of discretion given the limited damage, absence of property taken and absence of an alarmed victim, even allowing for the applicant's record and offending while on bail; it had to be set aside and replaced with a fixed concurrent term of two years imprisonment.

Court Disposition

Leave to appeal granted; appeal allowed in part; sentence for breaking and entering set aside and substituted; armed robbery sentence left undisturbed.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'In lieu of the sentence imposed by the sentencing judge on the breaking and entering charge, a fixed term of two years imprisonment is substituted.' 'The substituted fixed term is to be served concurrently with the sentence on the robbery charge and to commence on 13...