MW v R [2010] NSWCCA 324

MW v R [2010] NSWCCA 324

Leave to appeal was granted and the appeal allowed because the sentence required correction after the later District Court resentencing of the assault offence frustrated the intended concurrency and accumulation; the sentencing judge gave inadequate consideration to the applicant's youth, being 17 years and 8 months old at the time of the offence; and, having regard to youth, limited criminal history, personal circumstances, possible voluntary disclosure, Fernando-type disadvantage, and evidence of rehabilitation, the sentence was manifestly excessive.

Jurisdiction
Australia
Judgment Date
17 December 2010
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence imposed on 15 January 2010 quashed; applicant resentenced.
Legal Topics
['aggravated Robbery With Wounding' 'manifest Excess' 'commencement Date of Sentence' 'accumulation and Concurrency of Sentences' 'juvenile Offender' 'aboriginal Offender Disadvantage' 'voluntary Disclosure' 'rehabilitation']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravated Robbery With Wounding' 'manifest Excess' 'commencement Date of Sentence' 'accumulation and Concurrency of Sentences' 'juvenile Offender' 'aboriginal Offender Disadvantage' 'voluntary Disclosure' 'rehabilitation']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the commencement date of the sentence was erroneous because it failed to take into account custody referable to the offence and because the sentence became wholly accumulated on an earlier sentence after later resentencing in the District Court.' "Whether the sentencing judge failed to have proper regard to the applicant's age at the time of committing the offence." 'Whether the sentence imposed was manifestly excessive.' 'Whether the applicant was entitled to consideration for voluntary disclosure under R v Ellis and for social disadvantage and deprivation under R v Fernando.']

Ratio Decidendi

Leave to appeal was granted and the appeal allowed because the sentence required correction after the later District Court resentencing of the assault offence frustrated the intended concurrency and accumulation; the sentencing judge gave inadequate consideration to the applicant's youth, being 17 years and 8 months old at the time of the offence; and, having regard to youth, limited criminal history, personal circumstances, possible voluntary disclosure, Fernando-type disadvantage, and evidence of rehabilitation, the sentence was manifestly excessive.

Court Disposition

Leave to appeal granted; appeal allowed; sentence imposed on 15 January 2010 quashed; applicant resentenced.

Orders

  • ['Leave to appeal granted, the appeal allowed, the sentence imposed on 15 January 2010 quashed.' 'In lieu thereof, the applicant be sentenced to imprisonment for 2 years and 9 months, commencing on 25 August 2009 and expiring on 24 May 2012, made up of a non-parole period of 1 year and 6 months, expiring on 24...