Wu v R [2011] NSWCCA 102

Wu v R [2011] NSWCCA 102

The sentencing judge erred in sentencing principle by failing to have regard to the totality of the sentences imposed in 2010 together with the 2004 sentence for the National Australia Bank robbery, which was accepted as part of the same course of criminality. Totality principles applied even though the applicant had remained silent and the delay was not caused by an interstate element or by the operation of the criminal justice system. On resentencing, some concurrency was required, taking into account the prior sentence and the applicant's rehabilitation.

Jurisdiction
Australia
Judgment Date
04 May 2011
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal
Outcome
Leave to appeal granted; appeal allowed; sentences for the Collectors Tavern robbery and Buckland Hotel robbery set aside and replaced with revised sentences.
Legal Topics
['sentence Appeal' 'multiple Offences' 'totality Principle' 'delay in Sentencing' 'rehabilitation' 'armed Robbery' 'arson']
['criminal Law' 'sentencing'] ['sentence Appeal' 'multiple Offences' 'totality Principle' 'delay in Sentencing' 'rehabilitation' 'armed Robbery' 'arson']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to take proper account of the age of the offences and the applicant's earlier imprisonment for a like offence committed in the same course of criminal conduct." 'Whether totality principles applied where the applicant was sentenced separately and later for offences committed in 2003 after having been sentenced in 2004 for another robbery in the same course of criminality.' 'Whether failure to volunteer commission of offences or remaining silent deprived the applicant of totality considerations.']

Ratio Decidendi

The sentencing judge erred in sentencing principle by failing to have regard to the totality of the sentences imposed in 2010 together with the 2004 sentence for the National Australia Bank robbery, which was accepted as part of the same course of criminality. Totality principles applied even though the applicant had remained silent and the delay was not caused by an interstate element or by the operation of the criminal justice system. On resentencing, some concurrency was required, taking into account the prior sentence and the applicant's rehabilitation.

Court Disposition

Leave to appeal granted; appeal allowed; sentences for the Collectors Tavern robbery and Buckland Hotel robbery set aside and replaced with revised sentences.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' 'Set aside the sentence imposed for the Collectors Tavern robbery and in lieu thereof sentence the applicant to imprisonment for a non-parole period of 3 years commencing on 25 June 2009 with a balance of term of 1 year and 6 months.' 'Set aside the sentence imposed for...