Bell v R; Jelisavac v R [2009] NSWCCA 206

Bell v R; Jelisavac v R [2009] NSWCCA 206

The sentencing judge made no appealable error. The 12 month partial accumulation was open because the offences involved different criminality and the applicants' position differed materially from Martin's and L'Estrange's, including in charging, rehabilitation prospects and Form 1 matters. Bell's medical condition had been considered and did not require special circumstances, and any further reliance on it would have involved double counting. Jelisavac's evidence of remorse and rehabilitation was considered but, given his record and offending while on parole, the finding of no real prospects of rehabilitation was open. The refusal to find special circumstances, the parole structure, the...

Jurisdiction
Australia
Judgment Date
19 August 2009
Procedural Posture
Criminal Appeal Against Sentence / Applications for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted for both applicants; appeals dismissed.
Legal Topics
['parity' 'partial Accumulation of Sentences' 'special Circumstances' 'medical Condition as Mitigation' 'rehabilitation' 'remorse and Contrition' 'manifest Excess' 'offending While on Parole or Conditional Liberty' 'form 1 Offences' 'commencement Date of Sentence']
['criminal Law' 'sentencing'] ['parity' 'partial Accumulation of Sentences' 'special Circumstances' 'medical Condition as Mitigation' 'rehabilitation' 'remorse and Contrition' 'manifest Excess' 'offending While on Parole or Conditional Liberty' 'form 1 Offences' 'commencement Date of Sentence']

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Procedural Posture

Criminal Appeal Against Sentence / Applications 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 partially accumulating the sentence for the conspiracy by 12 months rather than 6 months.' "Whether Bell's medical condition required a finding of special circumstances or mitigation of sentence." "Whether Bell's sentence was manifestly excessive, including whether the 10 per cent discount for guilty pleas was inadequate." 'Whether the sentencing judge erred in finding that Jelisavac had no real prospects of rehabilitation despite evidence of remorse and steps taken in custody.' 'Whether the sentencing judge erred in not finding special circumstances for Jelisavac and in fixing an allegedly inadequate parole period.' "Whether the sentences imposed on Bell and Jelisavac infringed the parity principle by comparison with co-offenders, particularly Martin and L'Estrange." "Whether Jelisavac's sentence should have commenced earlier or been made more concurrent with the balance of his revoked parole period."]

Ratio Decidendi

The sentencing judge made no appealable error. The 12 month partial accumulation was open because the offences involved different criminality and the applicants' position differed materially from Martin's and L'Estrange's, including in charging, rehabilitation prospects and Form 1 matters. Bell's medical condition had been considered and did not require special circumstances, and any further reliance on it would have involved double counting. Jelisavac's evidence of remorse and rehabilitation was considered but, given his record and offending while on parole, the finding of no real prospects of rehabilitation was open. The refusal to find special circumstances, the parole structure, the...

Court Disposition

Leave to appeal against sentence granted for both applicants; appeals dismissed.

Orders

  • ['Bell: Leave to appeal against sentence granted.' 'Bell: Appeal dismissed.' 'Jelisavac: Leave to appeal against sentence granted.' 'Jelisavac: Appeal dismissed.']