Nathan McIVOR v R [2010] NSWCCA 7

Nathan McIVOR v R [2010] NSWCCA 7

The individual sentences of 7 years were not excessive, but the overall sentence was outside the available range when regard was had to comparable sentencing decisions, particularly Qing An. The parity ground was not a strict legitimate sense of grievance, but the sentence imposed on Cavanagh confirmed that the applicant's overall sentence was excessive. The Court therefore intervened and restructured the sentences to allow partial concurrence and reduce the overall effective sentence.

Jurisdiction
Australia
Judgment Date
12 February 2010
Procedural Posture
Criminal Law Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
The application for leave was granted and the appeal allowed in part.
Legal Topics
['multiple Armed Robberies' 'assault With Intent to Rob While in Company' 'manifest Excess' 'totality' 'parity Between Co Offenders' 'non Parole Period']
['criminal Law' 'sentencing'] ['multiple Armed Robberies' 'assault With Intent to Rob While in Company' 'manifest Excess' 'totality' 'parity Between Co Offenders' 'non Parole Period']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant received a comparatively harsher sentence than co-offender Barry Paul Cavanagh giving rise to a justifiable sense of grievance.' 'Whether the sentencing judge failed to give proper effect to the principle of totality.' 'Whether the sentences were manifestly excessive.']

Ratio Decidendi

The individual sentences of 7 years were not excessive, but the overall sentence was outside the available range when regard was had to comparable sentencing decisions, particularly Qing An. The parity ground was not a strict legitimate sense of grievance, but the sentence imposed on Cavanagh confirmed that the applicant's overall sentence was excessive. The Court therefore intervened and restructured the sentences to allow partial concurrence and reduce the overall effective sentence.

Court Disposition

The application for leave was granted and the appeal allowed in part.

Orders

  • ['The sentence for count 1 is confirmed.' 'In respect of count 2 the term of 7 years, made up of a non-parole period of 4 years 6 months and a balance of term of 2 years 6 months, is confirmed but is to date from 14 August 2009 with the non-parole period to expire on 13 February 2014.' 'In respect of count 3 the...