Darrigo v Regina [2007] NSWCCA 9

Darrigo v Regina [2007] NSWCCA 9

The sentencing judge erred by using the applicant's prior similar offending as an objective circumstance to characterise the offence as within or very close to the worst category and to determine the upper boundary of a proportionate sentence. The undiscounted starting point implicit in the sentence was excessive for this offence. The judge also erred under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 because, having declined to find special circumstances, the balance of term exceeded one-third of the non-parole period. These errors required resentencing.

Jurisdiction
Australia
Judgment Date
05 February 2007
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentence in the NSW Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.
Legal Topics
['aggravated Indecent Assault' 'prior Similar Offending' 'standard Non Parole Period' 'guilty Plea Discount' 'special Circumstances' 'crimes (sentencing Procedure) Act 1999 S 44']
['criminal Law' 'sentencing'] ['aggravated Indecent Assault' 'prior Similar Offending' 'standard Non Parole Period' 'guilty Plea Discount' 'special Circumstances' 'crimes (sentencing Procedure) Act 1999 S 44']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentence in the NSW Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge set an excessive undiscounted starting point and failed to quantify the discount for the early guilty plea.' 'Whether the sentencing judge erred by characterising the offence as one requiring consideration of the maximum penalty by reference to prior similar offending.' 'Whether the sentencing judge erred in applying s 44 of the Crimes (Sentencing Procedure) Act 1999 after declining to find special circumstances.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge erred by using the applicant's prior similar offending as an objective circumstance to characterise the offence as within or very close to the worst category and to determine the upper boundary of a proportionate sentence. The undiscounted starting point implicit in the sentence was excessive for this offence. The judge also erred under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 because, having declined to find special circumstances, the balance of term exceeded one-third of the non-parole period. These errors required resentencing.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed, sentence imposed in the District Court quashed.' 'In lieu thereof the applicant be sentenced to a non-parole period of 4 years and 6 months commencing on 23 March 2005 and expiring on 22 September 2009 and a balance of term of 1 year and 6 months expiring on 22 March 2011.']