Carrington v R [2021] NSWCCA 257

Carrington v R [2021] NSWCCA 257

Ground 1 failed because the sentencing judge's reasons had to be read in the context of the case advanced below, where defence counsel did not seek findings of remorse, good rehabilitation prospects or unlikelihood of reoffending and effectively conceded the matters were not established. Ground 2 succeeded because the indicative starting points selected in the District Court were at or very close to the maximum penalties despite findings of objective seriousness above the mid-range rather than worst category, and the resulting aggregate sentence substantially diluted the 25% guilty plea discount and exceeded what was required to reflect total criminality, the applicable maximum penalties...

Jurisdiction
Australia
Judgment Date
05 November 2021
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to an aggregate term of imprisonment for 10 years with a non-parole period of 7 years and 6 months.
Legal Topics
['sentence Appeal' 'manifest Excess' 'aggregate Sentence' 'guilty Plea' 'incest' 'assault Occasioning Actual Bodily Harm' 'incite Aggravated Act of Indecency' 'form 1 Offences' 'de Simoni Principle' 'suppression and Non Publication Orders']
['criminal Law' 'sentencing'] ['sentence Appeal' 'manifest Excess' 'aggregate Sentence' 'guilty Plea' 'incest' 'assault Occasioning Actual Bodily Harm' 'incite Aggravated Act of Indecency' 'form 1 Offences' 'de Simoni Principle' 'suppression and Non Publication Orders']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to have regard to positive evidence relating to remorse, prospects of rehabilitation and likelihood of reoffending.' 'Whether the aggregate sentence of imprisonment for 16 years with a non-parole period of 12 years was manifestly excessive.' 'Whether suppression and non-publication orders made in the District Court should be revoked as unnecessary in light of statutory prohibitions on identification.']

Ratio Decidendi

Ground 1 failed because the sentencing judge's reasons had to be read in the context of the case advanced below, where defence counsel did not seek findings of remorse, good rehabilitation prospects or unlikelihood of reoffending and effectively conceded the matters were not established. Ground 2 succeeded because the indicative starting points selected in the District Court were at or very close to the maximum penalties despite findings of objective seriousness above the mid-range rather than worst category, and the resulting aggregate sentence substantially diluted the 25% guilty plea discount and exceeded what was required to reflect total criminality, the applicable maximum penalties...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to an aggregate term of imprisonment for 10 years with a non-parole period of 7 years and 6 months.

Orders

  • ['Grant leave to appeal and allow the appeal.' 'Quash the sentence imposed in the District Court on 29 October 2020.' 'Sentence the offender to an aggregate term of imprisonment for 10 years with a non-parole period of 7 years, 6 months. The commencement date of the sentence is 29 January 2020. Note that the...