APTHORPE v R [2012] NSWCCA 100

APTHORPE v R [2012] NSWCCA 100

The identified factual errors were not errors of substance affecting the sentence; the affray was very serious, the applicant had a poor criminal history and committed the offence while subject to a bond, so the sentence was within the permissible range and not manifestly excessive; and any difference between the applicant's non-parole period and Graham Apthorpe's was justified by the applicant's personal circumstances, including his prior record, and was not marked or clearly unjustifiable.

Jurisdiction
Australia
Judgment Date
21 May 2012
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['affray' 'sentence Appeal' 'manifest Excess' 'parity Principle' 'form 1 Offences' 'factual Error on Sentence']
['criminal Law' 'sentencing'] ['affray' 'sentence Appeal' 'manifest Excess' 'parity Principle' 'form 1 Offences' 'factual Error on Sentence']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing Judge erred by considering factual matters on sentence which did not apply to the applicant.' 'Whether there was parity error between the sentence imposed on the applicant and the sentence imposed on Graham Apthorpe.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The identified factual errors were not errors of substance affecting the sentence; the affray was very serious, the applicant had a poor criminal history and committed the offence while subject to a bond, so the sentence was within the permissible range and not manifestly excessive; and any difference between the applicant's non-parole period and Graham Apthorpe's was justified by the applicant's personal circumstances, including his prior record, and was not marked or clearly unjustifiable.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']