Regina v MSS [2005] NSWCCA 227

Regina v MSS [2005] NSWCCA 227

Although the sentencing judge erred by treating parity of sentencing regimes with the co-offender as relevant to the discretion whether to sentence the applicant at law, the Court would exercise the discretion in the same way. Given the applicant's continuing denial, lack of genuine interest in counselling, poor attitude to authority, relationship with his father, and assessed risk of re-offending, it was appropriate that he be sentenced according to law so that he would have a period on parole. The custodial sentence imposed for the serious offence was open and was not manifestly excessive.

Jurisdiction
Australia
Judgment Date
22 June 2005
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['juvenile Offender' 'sexual Intercourse With a Child Under the Age of 16 Years' 'manifestly Excessive Sentence' 'sentencing According to Law Versus Div 4 of Pt 3 of the Children (criminal Proceedings) Act 1987' 'non Parole Period']
['criminal Law' 'sentencing' "children's Criminal Proceedings"] ['juvenile Offender' 'sexual Intercourse With a Child Under the Age of 16 Years' 'manifestly Excessive Sentence' 'sentencing According to Law Versus Div 4 of Pt 3 of the Children (criminal Proceedings) Act 1987' 'non Parole Period']

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentence of 18 months imprisonment with a non-parole period of 9 months was manifestly excessive.' "Whether the sentencing judge's discretion miscarried by sentencing the applicant according to law rather than under Div 4 of Pt 3 of the Children (Criminal Proceedings) Act 1987." 'Whether the sentencing judge took into account an irrelevant consideration by relying on parity of sentencing regimes between the applicant and his co-offender.']

Ratio Decidendi

Although the sentencing judge erred by treating parity of sentencing regimes with the co-offender as relevant to the discretion whether to sentence the applicant at law, the Court would exercise the discretion in the same way. Given the applicant's continuing denial, lack of genuine interest in counselling, poor attitude to authority, relationship with his father, and assessed risk of re-offending, it was appropriate that he be sentenced according to law so that he would have a period on parole. The custodial sentence imposed for the serious offence was open and was not manifestly excessive.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal is granted but the appeal is dismissed.' 'The non-parole period of 9 months is to expire on 21 January 2006 the date upon which the applicant is to be released to parole.' 'The sentence expires in its entirety on 21 October 2006.']