Allen v Regina [2008] NSWCCA 11

Allen v Regina [2008] NSWCCA 11

The effective sentence of twelve years six months with a non-parole period of nine years for an immature young man entering custody for the first time, arising from a single outbreak of criminality and a later attempt to avoid its consequences, was manifestly excessive. The five-year sentence for the justice offence was excessive in the context of sentencing patterns, and the overall proportion between the non-parole period and total term showed latent error in giving effect to special circumstances. Leave was granted, the appeal allowed, and the appellant resentenced on counts 4, 5 and 6.

Jurisdiction
Australia
Judgment Date
08 February 2008
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentence in the New South Wales Court of Criminal Appeal
Outcome
Appeal allowed; appellant resentenced.
Legal Topics
['sexual Intercourse Without Consent' 'indecent Assault' 'assault' 'doing an Act With Intent to Pervert the Course of Justice' 'manifest Excess' 'totality' 'special Circumstances' 'standard Non Parole Period' 'remorse' 'youth of Offender']
['criminal Law and Procedure' 'sentencing'] ['sexual Intercourse Without Consent' 'indecent Assault' 'assault' 'doing an Act With Intent to Pervert the Course of Justice' 'manifest Excess' 'totality' 'special Circumstances' 'standard Non Parole Period' 'remorse' 'youth of Offender']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the effective total sentence of twelve years six months with a non-parole period of nine years was unduly harsh and severe or manifestly excessive.' 'Whether the sentence of five years for doing an act with intent to pervert the course of justice was manifestly excessive.' 'Whether the sentencing judge erred in the cumulation of the justice offence sentence and in giving effect to special circumstances.' "Whether the sentencing judge failed adequately or correctly to take into account the appellant's mental and emotional state." 'Whether the sentencing judge failed to take into account the youth of the appellant.' 'Whether the sentencing judge erred in determining that the appellant had shown no remorse.']

Ratio Decidendi

The effective sentence of twelve years six months with a non-parole period of nine years for an immature young man entering custody for the first time, arising from a single outbreak of criminality and a later attempt to avoid its consequences, was manifestly excessive. The five-year sentence for the justice offence was excessive in the context of sentencing patterns, and the overall proportion between the non-parole period and total term showed latent error in giving effect to special circumstances. Leave was granted, the appeal allowed, and the appellant resentenced on counts 4, 5 and 6.

Court Disposition

Appeal allowed; appellant resentenced.

Orders

  • ['Application for leave to appeal against sentence granted.' 'Appeal allowed and the sentences imposed on counts 4, 5 and 6 quashed.' 'On count 4, sexual intercourse without consent, the appellant was sentenced to imprisonment consisting of a fixed term of four years commencing on 8 September 2007 and expiring on 7...