Portelli v R [2018] NSWCCA 28

Portelli v R [2018] NSWCCA 28

The sentencing judge misstated the applicable standard non-parole period for the aggravated break, enter and steal offence as 7 years when it was 5 years, and the Court could not be confident that the correct standard non-parole period was used in the sentencing discretion. The unresolved evidentiary position...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 March 2018
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court
Outcome
Leave to appeal granted; appeal allowed; sentence set aside; matter remitted to the District Court for resentencing.
Legal Topics
['standard Non Parole Period' 'sentencing Discretion' 'additional Hardship in Custody' 'fresh or Overlooked Points on Appeal' 'remittal for Resentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['standard Non Parole Period' 'sentencing Discretion' 'additional Hardship in Custody' 'fresh or Overlooked Points on Appeal' 'remittal for Resentencing']

Source-derived case record

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ["Whether the sentencing judge's misstatement of the standard non-parole period for aggravated break, enter and steal affected the exercise of the sentencing discretion." "Whether the sentencing judge failed to take into account additional hardship arising from the applicant's back injury or condition." 'Whether the sentencing judge failed to take into account that the applicant would serve his sentence in protection.' 'Whether the Court of Criminal Appeal should resentence the applicant or remit the matter where evidence about custodial arrangements was incomplete or conflicting.']

Ratio Decidendi

The sentencing judge misstated the applicable standard non-parole period for the aggravated break, enter and steal offence as 7 years when it was 5 years, and the Court could not be confident that the correct standard non-parole period was used in the sentencing discretion. The unresolved evidentiary position concerning the applicant's back condition and custodial arrangements made resentencing by the Court inappropriate, so the sentence was set aside and the matter remitted to the District Court for resentencing.

Court Disposition

Leave to appeal granted; appeal allowed; sentence set aside; matter remitted to the District Court for resentencing.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed; sentence imposed in the District Court on 22 September 2016 set aside.' 'The matter be remitted to the District Court for resentencing.']