Sausa v R [2023] NSWCCA 95

Sausa v R [2023] NSWCCA 95

The sentencing judge expressly found special circumstances but imposed an aggregate non-parole period that was 75% of the aggregate head sentence, so the sentence did not give effect to that finding. The error was arithmetical and its extent could be determined, so it was appropriate to quash the sentence and impose the same 6 year aggregate term with a reduced non-parole period of 4 years to reflect the finding of special circumstances and the applicant's rehabilitative needs.

Jurisdiction
Australia
Judgment Date
24 April 2023
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court of NSW
Outcome
Leave to appeal granted; sentence quashed; applicant resentenced to an aggregate sentence of 6 years imprisonment with a non-parole period of 4 years.
Legal Topics
['sentence Appeal' 'special Circumstances' 'aggregate Sentence' 'non Parole Period' 'statutory Ratio' 'sexual Offences Against Child']
['criminal Law' 'sentencing'] ['sentence Appeal' 'special Circumstances' 'aggregate Sentence' 'non Parole Period' 'statutory Ratio' 'sexual Offences Against Child']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to give effect to her finding of special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the error could be corrected by varying the statutory ratio rather than by exercising the sentencing discretion afresh.']

Ratio Decidendi

The sentencing judge expressly found special circumstances but imposed an aggregate non-parole period that was 75% of the aggregate head sentence, so the sentence did not give effect to that finding. The error was arithmetical and its extent could be determined, so it was appropriate to quash the sentence and impose the same 6 year aggregate term with a reduced non-parole period of 4 years to reflect the finding of special circumstances and the applicant's rehabilitative needs.

Court Disposition

Leave to appeal granted; sentence quashed; applicant resentenced to an aggregate sentence of 6 years imprisonment with a non-parole period of 4 years.

Orders

  • ['Leave to appeal is granted.' 'The sentence imposed by Judge Syme on 22 October 2021 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 6 years imprisonment commencing on 6 June 2020 and expiring on 5 June 2026 with a non-parole period of 4 years expiring on 5 June 2024.']