R v Hemsley [2004] NSWCCA 228

R v Hemsley [2004] NSWCCA 228

The sentencing judge erred by failing to give proper effect to the utilitarian value of the applicant's early guilty plea, by failing to take the unchallenged evidence of the applicant's mental condition into account in assessing moral culpability, general deterrence and custodial hardship, and by treating the Henry guideline range as justifying a more severe sentence when the applicant's criminal history was not a substantial aggravating factor and her mental condition was a substantial mitigating factor. The original sentence was manifestly excessive, so leave was granted, the appeal allowed, the sentence quashed and the applicant re-sentenced.

Jurisdiction
Australia
Judgment Date
07 July 2004
Procedural Posture
Criminal Sentence Appeal Concerning Armed Robbery / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal allowed; original sentence quashed; applicant re-sentenced to imprisonment for three years with a non-parole period of two years and ordered to be released on parole at the end of the non-parole period.
Legal Topics
['armed Robbery' 'guilty Plea Discount' 'general Deterrence' 'mental Illness in Sentencing' 'guideline Judgments' 'special Circumstances' 'non Parole Period' 'manifest Excess']
['criminal Law' 'sentencing'] ['armed Robbery' 'guilty Plea Discount' 'general Deterrence' 'mental Illness in Sentencing' 'guideline Judgments' 'special Circumstances' 'non Parole Period' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentence Appeal Concerning Armed Robbery / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge failed to accord an appropriate discount for the applicant's early plea of guilty." "Whether the sentencing judge erred in treating general deterrence as a sentencing factor without moderating it by reason of the applicant's mental condition." 'Whether the sentencing judge erred in failing to find special circumstances.' 'Whether the sentencing judge erred in finding that a more severe punishment than the range suggested in Henry was appropriate.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge erred by failing to give proper effect to the utilitarian value of the applicant's early guilty plea, by failing to take the unchallenged evidence of the applicant's mental condition into account in assessing moral culpability, general deterrence and custodial hardship, and by treating the Henry guideline range as justifying a more severe sentence when the applicant's criminal history was not a substantial aggravating factor and her mental condition was a substantial mitigating factor. The original sentence was manifestly excessive, so leave was granted, the appeal allowed, the sentence quashed and the applicant re-sentenced.

Court Disposition

Leave to appeal against sentence granted; appeal allowed; original sentence quashed; applicant re-sentenced to imprisonment for three years with a non-parole period of two years and ordered to be released on parole at the end of the non-parole period.

Orders

  • ['Grant leave to appeal against sentence.' 'Appeal allowed.' 'Sentence quashed and, in lieu thereof, re-sentence the applicant to imprisonment for three years commencing on 27 February 2003 with a non-parole period of two years commencing on 27 February 2003 and expiring on 26 February 2005.' 'Order that the...