Melaisis v R [2018] NSWCCA 184

Melaisis v R [2018] NSWCCA 184

The sentence of 3 years imprisonment with a non-parole period of one year and 10 months was manifestly excessive. Although the offence was aggravated robbery, it was in the lower level of objective seriousness: it was spontaneous, unpremeditated, brief, involved a very low level of additional violence, caused no significant long-term injury, involved no material gain, and the property was recovered. Together with the applicant's reasonably favourable subjective circumstances and low assessed risk of reoffending, the original sentence was unreasonable and plainly unjust. There was also no evidentiary basis for special circumstances justifying a longer balance of term.

Jurisdiction
Australia
Judgment Date
27 August 2018
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence for aggravated robbery quashed; applicant resentenced.
Legal Topics
['aggravated Robbery' 'manifest Excess' 'non Parole Period' 'special Circumstances' 'actual Bodily Harm']
['criminal Law' 'sentencing'] ['aggravated Robbery' 'manifest Excess' 'non Parole Period' 'special Circumstances' 'actual Bodily Harm']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in failing to have regard to the degree of pre-trial disclosure by the applicant.' 'Whether the applicant was denied procedural fairness by the way the sentencing judge took into account purported facts from offences committed in 2008.' 'Whether the sentence imposed for aggravated robbery was manifestly excessive.' 'Whether there was a basis for finding special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).']

Ratio Decidendi

The sentence of 3 years imprisonment with a non-parole period of one year and 10 months was manifestly excessive. Although the offence was aggravated robbery, it was in the lower level of objective seriousness: it was spontaneous, unpremeditated, brief, involved a very low level of additional violence, caused no significant long-term injury, involved no material gain, and the property was recovered. Together with the applicant's reasonably favourable subjective circumstances and low assessed risk of reoffending, the original sentence was unreasonable and plainly unjust. There was also no evidentiary basis for special circumstances justifying a longer balance of term.

Court Disposition

Leave to appeal granted; appeal allowed; sentence for aggravated robbery quashed; applicant resentenced.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' 'The sentence imposed in the District Court on 11 August 2017 for count 1 in the indictment, aggravated robbery, is quashed.' 'In lieu thereof the applicant is sentenced to imprisonment for a non-parole period of 1 year and 3 months commencing on 14 June 2017...