R v Presta [2000] NSWCCA 40

R v Presta [2000] NSWCCA 40

No sentencing error requiring intervention was demonstrated. The disputed factual matters were of little consequence compared with the appellant's overall criminality; s 90A was not misconstrued and there was no impermissible duplication concerning injury; the sentencing judge was entitled to give limited weight to the guilty pleas in light of the overwhelming video evidence; the matters of protective custody, forfeiture, personal history, special circumstances and rehabilitation did not show error; and the effective sentence was entirely appropriate. Accordingly no other sentence should have been imposed.

Jurisdiction
Australia
Judgment Date
09 May 2008
Procedural Posture
Criminal Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal Hearing of Application for Leave to Appeal
Outcome
Application for leave to appeal granted; appeal dismissed.
Legal Topics
['kidnapping' 'aggravated Sexual Assault' 'severity Appeal' 'guilty Plea' 'protective Custody' 'forfeiture of Property' 'special Circumstances' 'manifest Excess']
['criminal Law' 'criminal Procedure' 'sentencing'] ['kidnapping' 'aggravated Sexual Assault' 'severity Appeal' 'guilty Plea' 'protective Custody' 'forfeiture of Property' 'special Circumstances' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal Hearing of Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in ascertaining or finding the facts on which the appellant was sentenced.' 'Whether the sentencing judge erred in determining the maximum sentence for kidnapping under s 90A of the Crimes Act 1900 and duplicated the use of injury as an aggravating factor.' "Whether the sentencing judge failed to give any or sufficient weight to the appellant's pleas of guilty." 'Whether the sentencing judge erred in relation to s 439(2) of the Crimes Act concerning reasons for not reducing sentence for a guilty plea.' 'Whether the sentencing judge failed to give sufficient weight to the likelihood that the appellant would serve his sentence in protective custody.' "Whether the sentencing judge failed to take into account the appellant's consent to forfeiture of his house." "Whether the sentencing judge failed to give sufficient weight to the appellant's claimed sexual assault as a young person." 'Whether the sentencing judge erred in not finding special circumstances under s 5(2) of the Sentencing Act.' 'Whether the sentencing judge failed to take into account rehabilitation.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

No sentencing error requiring intervention was demonstrated. The disputed factual matters were of little consequence compared with the appellant's overall criminality; s 90A was not misconstrued and there was no impermissible duplication concerning injury; the sentencing judge was entitled to give limited weight to the guilty pleas in light of the overwhelming video evidence; the matters of protective custody, forfeiture, personal history, special circumstances and rehabilitation did not show error; and the effective sentence was entirely appropriate. Accordingly no other sentence should have been imposed.

Court Disposition

Application for leave to appeal granted; appeal dismissed.

Orders

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