RS v R [2013] NSWCCA 227

RS v R [2013] NSWCCA 227

The original limiting terms were set in a way that resulted in a substantial hiatus and total accumulation between the terms for offences against two different victims, contrary to established sentencing principles and the statutory intention that limiting terms not be more onerous than sentences post-conviction after a normal trial. The appellate court found this approach led to a longer custodial period than if proper concurrency had been applied, thus the period imposed was unusually harsh and severe. Accordingly, the appeal was allowed and re-sentencing ordered with new, lesser limiting terms imposed with appropriate concurrency.

Jurisdiction
Australia
Judgment Date
09 October 2013
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal allowed. Applicant re-sentenced.
Legal Topics
['appeal Against Sentence' 'sexual Assault' 'intellectual Disability' 'limiting Terms' 'special Hearing' 'accumulation and Concurrency of Sentences' 'sentencing Principles' 'protection of Community']
['criminal Law'] ['appeal Against Sentence' 'sexual Assault' 'intellectual Disability' 'limiting Terms' 'special Hearing' 'accumulation and Concurrency of Sentences' 'sentencing Principles' 'protection of Community']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to take into account s 23(6) of the Mental Health (Forensic Provisions) Act 1990' 'Whether there was error in finding that the offender engaged in simulated intercourse' 'Whether the total limiting term imposed was unduly harsh and severe' 'Whether failure to take into account the applicant’s intellectual disability or good character' 'Whether a longer sentence was wrongly imposed based on protection of the community']

Ratio Decidendi

The original limiting terms were set in a way that resulted in a substantial hiatus and total accumulation between the terms for offences against two different victims, contrary to established sentencing principles and the statutory intention that limiting terms not be more onerous than sentences post-conviction after a normal trial. The appellate court found this approach led to a longer custodial period than if proper concurrency had been applied, thus the period imposed was unusually harsh and severe. Accordingly, the appeal was allowed and re-sentencing ordered with new, lesser limiting terms imposed with appropriate concurrency.

Court Disposition

Appeal allowed. Applicant re-sentenced.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' 'The limiting terms imposed by Sides DCJ on 8 February 2013 are quashed.' 'In lieu thereof, the following limiting terms are imposed: (i) On counts 1, 3 and 5: 1 month commencing 18 October 2011 expiring 17 November 2011; (ii) On count 2: 8 months commencing 18...