REGINA v. ELLMORE [2002] NSWCCA 242

REGINA v. ELLMORE [2002] NSWCCA 242

The sentencing discretion miscarried because the judge declined to backdate the sentences on the basis of anticipated Parole Board action, rather than applying the ordinary rule that custody for the offences be taken into account. The sentences for counts four and five also failed adequately to translate the guilty plea discount and other mitigating factors into the final sentence, and the effective non-parole period did not sufficiently reflect the special circumstances found.

Jurisdiction
Australia
Judgment Date
19 June 2002
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal against the sentences granted; appeal allowed in part.
Legal Topics
['sentence Appeal' 'sexual Offences Against Children' 'commencement Date of Sentences' 'offences Committed While on Parole' 'special Circumstances' 'non Parole Period' 'guilty Plea Discount' 'protected Custody']
['criminal Law' 'sentencing'] ['sentence Appeal' 'sexual Offences Against Children' 'commencement Date of Sentences' 'offences Committed While on Parole' 'special Circumstances' 'non Parole Period' 'guilty Plea Discount' 'protected Custody']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to backdate the sentences to the date the applicant entered custody for the offences.' 'Whether the sentencing judge gave adequate effect to mitigating factors, including early guilty pleas, remorse, protected custody, rehabilitation prospects, age, and otherwise good character.' 'Whether the sentences for the s.61M(2) offences were excessive in light of the maximum penalty and available discounts.' 'Whether the non-parole period adequately reflected the special circumstances found.']

Ratio Decidendi

The sentencing discretion miscarried because the judge declined to backdate the sentences on the basis of anticipated Parole Board action, rather than applying the ordinary rule that custody for the offences be taken into account. The sentences for counts four and five also failed adequately to translate the guilty plea discount and other mitigating factors into the final sentence, and the effective non-parole period did not sufficiently reflect the special circumstances found.

Court Disposition

Leave to appeal against the sentences granted; appeal allowed in part.

Orders

  • ['Dismiss the appeals against the sentences of a fixed period of 15 months on each of counts one, two and three of the indictment, but vary the commencement date of each sentence to 24 April 2001 to expire on 23 July 2002.' 'Dismiss the appeal against the sentence imposing a fixed period of imprisonment of three...