Maglis v R [2010] NSWCCA 247

Maglis v R [2010] NSWCCA 247

The sentencing judge found special circumstances and intended that finding to affect the overall period of custody, but the structuring of the sentences produced an overall non-parole period of about 77 per cent of the head sentence for the District Court sentences and about 80 per cent when the earlier sentence was considered. That result did not reflect the judge's intended variation of the statutory ratio. The appropriate remedy was to quash the sentences on counts 3 and 4 and restructure them so that the overall non-parole period was 70 per cent of the overall total sentence of 9 years 4 months and 20 days, expiring on 4 June 2013.

Jurisdiction
Australia
Judgment Date
15 November 2010
Procedural Posture
Proceedings After Conviction; Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court After Guilty Pleas; Leave Granted and Appeal Allowed in Part
Outcome
Application for leave granted; appeal allowed in part; sentences for counts 3 and 4 quashed and replaced.
Legal Topics
['armed Robbery' 'attempted Armed Robbery With a Dangerous Weapon' 'totality Principle' 'special Circumstances' 'non Parole Period' 'partly Cumulative Sentences']
['criminal Law' 'sentencing' 'criminal Appeals'] ['armed Robbery' 'attempted Armed Robbery With a Dangerous Weapon' 'totality Principle' 'special Circumstances' 'non Parole Period' 'partly Cumulative Sentences']

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Procedural Posture

Proceedings After Conviction; Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court After Guilty Pleas; Leave Granted and Appeal Allowed in Part

Legal Issues

  1. 1 ['Whether the sentencing judge failed to structure the sentences so as to give proper effect to s 44 Crimes (Sentencing Procedure) Act 1999 and vary the statutory ratio after finding special circumstances.' "Whether the overall non-parole period reflected the sentencing judge's stated finding of special circumstances and intention that the applicant have an opportunity for release at a time when he could rehabilitate himself." 'Whether the sentences should be restructured on totality considerations.']

Ratio Decidendi

The sentencing judge found special circumstances and intended that finding to affect the overall period of custody, but the structuring of the sentences produced an overall non-parole period of about 77 per cent of the head sentence for the District Court sentences and about 80 per cent when the earlier sentence was considered. That result did not reflect the judge's intended variation of the statutory ratio. The appropriate remedy was to quash the sentences on counts 3 and 4 and restructure them so that the overall non-parole period was 70 per cent of the overall total sentence of 9 years 4 months and 20 days, expiring on 4 June 2013.

Court Disposition

Application for leave granted; appeal allowed in part; sentences for counts 3 and 4 quashed and replaced.

Orders

  • ['The application for leave be granted and the appeal be allowed in part.' 'The sentences for counts 3 and 4 are quashed.' 'On count 3 the applicant is sentenced to a term of imprisonment made up of a non-parole period commencing on 9 November 2010 and expiring on 4 June 2013 with a balance of term to expire on 28...