R v Rae [2013] NSWCCA 9

R v Rae [2013] NSWCCA 9

The aggregate sentence was manifestly inadequate because the aggregate head sentence was identical to the longest indicative sentence and therefore failed to reflect any real cumulation for separate and serious criminality, particularly the planned aggravated break enter and steal committed separately from the firearm discharge offence. Although the indicative sentence for the s 33A offence was lenient, it was not outside the sentencing discretion. The compelling subjective evidence and distress did not justify declining to intervene, but justified imposing a lesser sentence than would otherwise have been imposed at first instance.

Jurisdiction
Australia
Judgment Date
04 February 2013
Procedural Posture
Crown Appeal Against Sentence Pursuant to S 5 D of the Criminal Appeal Act 1912 / Appeal to the Court of Criminal Appeal From an Aggregate Sentence Imposed by the District Court of New South Wales on 26 August 2011
Outcome
Crown appeal against sentence allowed; District Court aggregate sentence quashed; respondent re-sentenced to a longer aggregate sentence.
Legal Topics
['crown Sentence Appeal' 'aggregate Sentencing Under S 53 a of the Crimes (sentencing Procedure) Act 1999' 'manifest Inadequacy' 'cumulation and Partial Accumulation' 'totality of Criminality' 'aggravated Break Enter and Steal' 'discharging a Firearm With Intent to Inflict Grievous Bodily Harm' 'unauthorised Possession of a Prohibited Firearm']
['criminal Law' 'sentencing' 'criminal Procedure'] ['crown Sentence Appeal' 'aggregate Sentencing Under S 53 a of the Crimes (sentencing Procedure) Act 1999' 'manifest Inadequacy' 'cumulation and Partial Accumulation' 'totality of Criminality' 'aggravated Break Enter and Steal' 'discharging a Firearm With Intent to Inflict Grievous Bodily Harm' 'unauthorised Possession of a Prohibited Firearm']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence Pursuant to S 5 D of the Criminal Appeal Act 1912 / Appeal to the Court of Criminal Appeal From an Aggregate Sentence Imposed by the District Court of New South Wales on 26 August 2011

Legal Issues

  1. 1 ['Whether the indicative sentence for the s 33A firearms offence could be challenged as a separate sentence on a Crown appeal' 'Whether the aggregate sentence failed to reflect any degree of partial accumulation between separate offences' 'Whether the aggregate head sentence and aggregate non-parole period were manifestly inadequate' 'Whether the Court should exercise its discretion not to intervene despite fresh evidence of rehabilitation, distress and subjective hardship']

Ratio Decidendi

The aggregate sentence was manifestly inadequate because the aggregate head sentence was identical to the longest indicative sentence and therefore failed to reflect any real cumulation for separate and serious criminality, particularly the planned aggravated break enter and steal committed separately from the firearm discharge offence. Although the indicative sentence for the s 33A offence was lenient, it was not outside the sentencing discretion. The compelling subjective evidence and distress did not justify declining to intervene, but justified imposing a lesser sentence than would otherwise have been imposed at first instance.

Court Disposition

Crown appeal against sentence allowed; District Court aggregate sentence quashed; respondent re-sentenced to a longer aggregate sentence.

Orders

  • ['Crown appeal against sentence allowed.' 'The aggregate sentence imposed by the District Court on 26 August 2011 is quashed.' 'The respondent is re-sentenced as follows: an aggregate head sentence of imprisonment for 7 years 7 months to date from 16 July 2010 and expire on 15 February 2018 is imposed, with an...