Casella v R [2019] NSWCCA 201

Casella v R [2019] NSWCCA 201

There was no denial of procedural fairness because a custodial sentence and alternatives to full-time imprisonment were treated as live issues in the parties' submissions, and the sentencing judge was not required to disclose preliminary views. The sentencing judge did not make out an appealable error in considering alternatives, but the order that the 8-month sentence be served by full-time custody was manifestly excessive given the severity of the term relative to the 2-year maximum, the limited weight to be given to 1995 convictions for personal deterrence, the applicant's strong subjective case and health, and the inconsistency with non-custodial sentences imposed on offenders who...

Jurisdiction
Australia
Judgment Date
29 August 2019
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal and Appeal Against Sentence From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to 6 months imprisonment to be served by way of an Intensive Correction Order.
Legal Topics
['concealing Serious Indictable Offence' 'alternatives to Full Time Imprisonment' 'intensive Correction Orders' 'procedural Fairness in Sentencing' 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Appeals'] ['concealing Serious Indictable Offence' 'alternatives to Full Time Imprisonment' 'intensive Correction Orders' 'procedural Fairness in Sentencing' 'manifest Excess']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal and Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the applicant was denied procedural fairness during sentencing proceedings on the issue of alternatives to full-time imprisonment and special circumstances.' 'Whether the sentencing judge erred in failing to appropriately consider alternatives to full-time imprisonment.' 'Whether the sentence imposed was manifestly excessive.' 'Whether, on resentencing, an Intensive Correction Order was appropriate.']

Ratio Decidendi

There was no denial of procedural fairness because a custodial sentence and alternatives to full-time imprisonment were treated as live issues in the parties' submissions, and the sentencing judge was not required to disclose preliminary views. The sentencing judge did not make out an appealable error in considering alternatives, but the order that the 8-month sentence be served by full-time custody was manifestly excessive given the severity of the term relative to the 2-year maximum, the limited weight to be given to 1995 convictions for personal deterrence, the applicant's strong subjective case and health, and the inconsistency with non-custodial sentences imposed on offenders who...

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to 6 months imprisonment to be served by way of an Intensive Correction Order.

Orders

  • ['Grant the applicant leave to appeal.' 'Appeal allowed.' 'Quash the sentence imposed on the applicant on 21 September 2018.' 'Sentence the applicant to a term of imprisonment of 6 months to be served by way of an Intensive Correction Order.' 'Pursuant to s 73A of the Crimes (Sentencing Procedure) Act 1999 (NSW),...