R v Gaudry, R v MacDonald [2010] NSWCCA 70

R v Gaudry, R v MacDonald [2010] NSWCCA 70

The sentencing judge erred in categorising the offences as 'towards the bottom of the range' for objective seriousness, placing excessive reliance on the stupidity and lack of sophistication of the threats, and failed to apply the two-step process required for suspended sentences. The sentences were manifestly inadequate having regard to the seriousness of the offences and the lack of favourable subjective circumstances. The Crown appeals are allowed, sentences quashed, and new sentences of imprisonment imposed with specified non-parole periods.

Parties
Appellant: Regina; Respondent: Brooke Leah Gaudry; Respondent: Jason Matthew MacDonald
Jurisdiction
Australia
Judgment Date
23 April 2010
Procedural Posture
Crown Appeal Against Sentence / Court of Criminal Appeal Decision on Appeal
Outcome
Crown appeals allowed; sentences quashed; new sentences imposed with full-time imprisonment and non-parole periods.
Legal Topics
Sentencing, Crown Appeals Against Sentence, Threatening Witness, Objective Seriousness, Error in Sentencing Procedure
Criminal Law Sentencing Crown Appeals Against Sentence Threatening Witness Objective Seriousness Error in Sentencing Procedure

Case Brief

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Parties

Regina

Appellant

Brooke Leah Gaudry

Respondent

Jason Matthew MacDonald

Respondent

Procedural Posture

Crown Appeal Against Sentence / Court of Criminal Appeal Decision on Appeal

Legal Issues

  1. 1 Whether the sentencing judge erred in categorising the offences as towards the bottom of the range for seriousness
  2. 2 Whether sentences were manifestly inadequate
  3. 3 Whether the sentencing judge failed to apply the correct sentencing methodology (two-step process for suspended sentences)

Ratio Decidendi

The sentencing judge erred in categorising the offences as 'towards the bottom of the range' for objective seriousness, placing excessive reliance on the stupidity and lack of sophistication of the threats, and failed to apply the two-step process required for suspended sentences. The sentences were manifestly inadequate having regard to the seriousness of the offences and the lack of favourable subjective circumstances. The Crown appeals are allowed, sentences quashed, and new sentences of imprisonment imposed with specified non-parole periods.

Court Disposition

Crown appeals allowed; sentences quashed; new sentences imposed with full-time imprisonment and non-parole periods.

Orders

  • For MacDonald: Appeal allowed. Sentence quashed. New sentence: non-parole period of one year nine months from 16 October 2009 to 15 July 2011, balance of term seven months. Release on parole on 15 July 2011 unless held for other reasons.
  • For Gaudry: Appeal allowed. Sentence quashed. New sentence: non-parole period of one year six months from 16 October 2009 to 15 April 2011, balance of term six months. Release on parole on 15 April 2011 unless held for other reasons.