R v Daley [2010] NSWCCA 223

R v Daley [2010] NSWCCA 223

The appeal was allowed because, although most asserted specific errors were not established, the sentencing judge erred in the exercise of discretion by structuring the sentence so that the effective non-parole period was only 1 year 7 months 11 days. That period failed to give sufficient weight to the objective seriousness of the sexual assault of a young prisoner, the fact that it was committed while the respondent was serving a sentence for an almost identical sexual assault, and the needs for general deterrence, specific deterrence and protection of the community. The effective sentence was manifestly inadequate and required resentencing.

Jurisdiction
Australia
Judgment Date
08 October 2010
Procedural Posture
Crown Appeal Against Sentence Pursuant to S 5 D Criminal Appeal Act 1912 / Appeal From Sentence Imposed in the District Court at Bathurst
Outcome
Crown appeal against sentence upheld; District Court sentence quashed; conviction confirmed; respondent resentenced.
Legal Topics
['sexual Intercourse Without Consent' 'crown Appeal Against Sentence' 'manifest Inadequacy' 'aggravating Factors' 'actual or Threatened Violence' 'vulnerable Victim' 'standard Non Parole Period' 'totality' 'general Deterrence' 'specific Deterrence' 'rehabilitation']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sexual Intercourse Without Consent' 'crown Appeal Against Sentence' 'manifest Inadequacy' 'aggravating Factors' 'actual or Threatened Violence' 'vulnerable Victim' 'standard Non Parole Period' 'totality' 'general Deterrence' 'specific Deterrence' 'rehabilitation']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence Pursuant to S 5 D Criminal Appeal Act 1912 / Appeal From Sentence Imposed in the District Court at Bathurst

Legal Issues

  1. 1 ['Whether the sentencing judge erred by treating actual or threatened violence as implicit in the offence rather than as an aggravating factor under s 21A(2)(b) Crimes (Sentencing Procedure) Act.' 'Whether the sentencing judge failed to take into account that the victim was vulnerable under s 21A(2)(l) Crimes (Sentencing Procedure) Act.' "Whether the sentencing judge erred in finding that the respondent's likelihood of re-offending and prospects of rehabilitation remained to be seen." 'Whether the sentencing judge erred in assessing the offence as in the mid-range of objective seriousness.' "Whether the sentence structure failed to reflect the respondent's overall criminality." 'Whether the sentence was manifestly inadequate.']

Ratio Decidendi

The appeal was allowed because, although most asserted specific errors were not established, the sentencing judge erred in the exercise of discretion by structuring the sentence so that the effective non-parole period was only 1 year 7 months 11 days. That period failed to give sufficient weight to the objective seriousness of the sexual assault of a young prisoner, the fact that it was committed while the respondent was serving a sentence for an almost identical sexual assault, and the needs for general deterrence, specific deterrence and protection of the community. The effective sentence was manifestly inadequate and required resentencing.

Court Disposition

Crown appeal against sentence upheld; District Court sentence quashed; conviction confirmed; respondent resentenced.

Orders

  • ['The Crown appeal against sentence be upheld.' 'The sentence imposed in the District Court on 28 April 2010 be quashed.' 'The conviction is confirmed.' 'The respondent is sentenced to a term of imprisonment of 5 years consisting of a non-parole period of 3 years 6 months commencing on 18 November 2010 and expiring...