Regina v Weldon; Regina v Carberry [2002] NSWCCA 475

Regina v Weldon; Regina v Carberry [2002] NSWCCA 475

The wholly concurrent sentences failed to reflect the distinct criminality involved in the malicious wounding of Darren George, because the s 98 offences punished the wounding or grievous bodily harm inflicted on Matthew George and did not punish the separate malicious wounding of Darren George. The sentencing judge erred by treating the offences as concurrent merely because they arose out of the same circumstances, and the sentences for the principal offences were significantly too low. Applying proportionality and totality, increased partly cumulative aggregate sentences were required.

Jurisdiction
Australia
Judgment Date
04 December 2002
Procedural Posture
Criminal Sentence Appeal / Crown Appeal Against Sentences Imposed in the District Court
Outcome
Appeals upheld; sentences imposed by Norrish DCJ set aside; substitute sentences imposed.
Legal Topics
['crown Appeal Against Sentence' 'manifest Inadequacy' 'concurrent and Cumulative Sentences' 'totality Principle' 'armed Robbery With Wounding' 'robbery in Company Inflicting Grievous Bodily Harm' 'malicious Wounding']
['criminal Law' 'sentencing'] ['crown Appeal Against Sentence' 'manifest Inadequacy' 'concurrent and Cumulative Sentences' 'totality Principle' 'armed Robbery With Wounding' 'robbery in Company Inflicting Grievous Bodily Harm' 'malicious Wounding']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Crown Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentences imposed on Gregory John Carberry and Daniel Robert Weldon were manifestly inadequate.' 'Whether the sentencing judge erred by making the sentences for malicious wounding wholly concurrent with the sentences for armed robbery with wounding or robbery in company inflicting grievous bodily harm.' "Whether the aggregate sentences fairly and justly reflected the total criminality of each respondent's conduct."]

Ratio Decidendi

The wholly concurrent sentences failed to reflect the distinct criminality involved in the malicious wounding of Darren George, because the s 98 offences punished the wounding or grievous bodily harm inflicted on Matthew George and did not punish the separate malicious wounding of Darren George. The sentencing judge erred by treating the offences as concurrent merely because they arose out of the same circumstances, and the sentences for the principal offences were significantly too low. Applying proportionality and totality, increased partly cumulative aggregate sentences were required.

Court Disposition

Appeals upheld; sentences imposed by Norrish DCJ set aside; substitute sentences imposed.

Orders

  • ['As regards Carberry: the sentence in respect of the offence of armed robbery with wounding be eight years three months imprisonment with a non-parole period of five years.' 'As regards Carberry: the term of eight years three months imprisonment to commence on 11 November 2002 and expire on 10 February 2011, such...