Buksh v R [2013] NSWCCA 60

Buksh v R [2013] NSWCCA 60

Reading the sentencing reasons fairly and as a whole, the primary judge did not adopt an impermissible two-stage approach by commencing with the standard non-parole period and seeking factors justifying variation. He was mindful of the maximum sentence and standard non-parole period as legislative guideposts and identified the relevant facts, matters and circumstances bearing on sentence. No appellable error was demonstrated; and in any event, given the objective seriousness of the offending, retribution, denunciation, general deterrence, effect on the victim and total criminality, no lesser sentence was warranted in law.

Jurisdiction
Australia
Judgment Date
11 April 2013
Procedural Posture
Criminal Law Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Application for Leave to Appeal From Sentence Imposed in the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'standard Non Parole Period' 'two Stage Sentencing Process' 'instinctive Synthesis' 'objective Seriousness' 'guilty Plea Discount' 'totality' 'general Deterrence']
['criminal Law' 'sentencing'] ['aggravated Sexual Intercourse Without Consent' 'standard Non Parole Period' 'two Stage Sentencing Process' 'instinctive Synthesis' 'objective Seriousness' 'guilty Plea Discount' 'totality' 'general Deterrence']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred by sentencing for standard non-parole period offences in accordance with the two-stage process discussed in R v Way [2004] NSWCCA 131; 60 NSWLR 168 and disapproved in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.' "Whether, if error were established, some lesser sentence was warranted in law having regard to the applicant's subjective case and the objective seriousness of the offending."]

Ratio Decidendi

Reading the sentencing reasons fairly and as a whole, the primary judge did not adopt an impermissible two-stage approach by commencing with the standard non-parole period and seeking factors justifying variation. He was mindful of the maximum sentence and standard non-parole period as legislative guideposts and identified the relevant facts, matters and circumstances bearing on sentence. No appellable error was demonstrated; and in any event, given the objective seriousness of the offending, retribution, denunciation, general deterrence, effect on the victim and total criminality, no lesser sentence was warranted in law.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Appeal dismissed.']