Regina v Street [2005] NSWCCA 139

Regina v Street [2005] NSWCCA 139

The appeal was allowed because the sentencing judge's collective and non-specific reliance on s21A aggravating factors created a real risk of double counting matters that were elements of the offences; the structure of the partially accumulated sentences failed to give practical effect to the finding of special circumstances; and the Form 1 matters were taken into account on the wrong principal offence. The individual head sentences were not excessive, but the overall structure required adjustment to produce a head sentence of 10 years with a non-parole period of 7 years.

Jurisdiction
Australia
Judgment Date
14 April 2005
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted and appeal allowed. Sentences imposed in the District Court quashed and the applicant re-sentenced.
Legal Topics
['armed Robbery' 'crimes (sentencing Procedure) Act 1999 S21 A' 'special Circumstances' 'non Parole Period' 'totality' 'form 1 Matters' 'double Counting of Aggravating Factors']
['criminal Law' 'sentencing'] ['armed Robbery' 'crimes (sentencing Procedure) Act 1999 S21 A' 'special Circumstances' 'non Parole Period' 'totality' 'form 1 Matters' 'double Counting of Aggravating Factors']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred by taking into account as aggravating features under s21A of the Crimes (Sentencing Procedure) Act 1999 matters that were elements of the offence.' 'Whether the sentencing judge failed to give effect to the finding of special circumstances when structuring partially accumulated sentences.' 'Whether the overall sentence was manifestly excessive and failed to adequately take into account totality.' 'Whether the sentencing judge erred in taking the Form 1 matters into account on the wrong principal offence.']

Ratio Decidendi

The appeal was allowed because the sentencing judge's collective and non-specific reliance on s21A aggravating factors created a real risk of double counting matters that were elements of the offences; the structure of the partially accumulated sentences failed to give practical effect to the finding of special circumstances; and the Form 1 matters were taken into account on the wrong principal offence. The individual head sentences were not excessive, but the overall structure required adjustment to produce a head sentence of 10 years with a non-parole period of 7 years.

Court Disposition

Leave to appeal granted and appeal allowed. Sentences imposed in the District Court quashed and the applicant re-sentenced.

Orders

  • ['Leave to appeal granted and appeal allowed.' 'The sentences imposed by Delaney DCJ on 18 June 2004 be quashed.' 'For the offence of armed robbery with a dangerous weapon contrary to s97(2) of the Crimes Act on 9 December 2002, imprisonment for a fixed term of 5 years to commence on 4 June 2003 and expire on 3 June...