R v Duma [2000] NSWCCA 132

R v Duma [2000] NSWCCA 132

There was no error in treating the striking of the bank victim as incidental to the robbery for which the applicant, as a participant, bore responsibility. However, the sentencing judge's failure to address possible variation of the sentencing ratio under s 5(2) of the Sentencing Act 1989, in a case where relevant material existed, showed error in the sentencing process and required re-sentencing on the first count only. On re-sentence, special circumstances justified a non-parole period shorter than the statutory ratio because the applicant would require extended supervision and assistance after release.

Jurisdiction
Australia
Judgment Date
19 April 2000
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted on all counts; appeal allowed and sentence quashed on the first count; appeal dismissed on the remaining counts.
Legal Topics
['robbery With Corporal Violence' 'aggravated Robbery' 'assaulting a Police Officer' 'being Carried in a Conveyance Without the Consent of the Owner' 'non Parole Period' 'special Circumstances' 'sentencing Ratio']
['criminal Law' 'sentencing'] ['robbery With Corporal Violence' 'aggravated Robbery' 'assaulting a Police Officer' 'being Carried in a Conveyance Without the Consent of the Owner' 'non Parole Period' 'special Circumstances' 'sentencing Ratio']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether a factual error infected the sentencing process by leaving open the possibility that the applicant struck the bank victim.' 'Whether the sentencing judge erred by failing to consider possible variation of the sentencing ratio under s 5(2) of the Sentencing Act 1989.' 'Whether special circumstances justified departure from the statutory ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 on re-sentence.']

Ratio Decidendi

There was no error in treating the striking of the bank victim as incidental to the robbery for which the applicant, as a participant, bore responsibility. However, the sentencing judge's failure to address possible variation of the sentencing ratio under s 5(2) of the Sentencing Act 1989, in a case where relevant material existed, showed error in the sentencing process and required re-sentencing on the first count only. On re-sentence, special circumstances justified a non-parole period shorter than the statutory ratio because the applicant would require extended supervision and assistance after release.

Court Disposition

Leave to appeal granted on all counts; appeal allowed and sentence quashed on the first count; appeal dismissed on the remaining counts.

Orders

  • ['On the first count, leave to appeal be granted, the appeal allowed and the sentence imposed be quashed.' 'In lieu thereof, the applicant be sentenced to imprisonment for four years, with a non-parole period of two years and six months, the sentence to commence on 12 March 1999.' 'The earliest date on which the...