Ith v R [2013] NSWCCA 280

Ith v R [2013] NSWCCA 280

Although Muldrock error was established, the Court held that no lesser sentence was warranted in law given the maximum penalty, the seriousness and viciousness of the offending, the applicant's principal role, absence of remorse, and the aggravating circumstance that the offence was committed shortly after release to parole for armed robbery. The sentencing judge did not err in fixing the sentence to commence after expiry of the revoked parole period, and the substantial differences between the applicant and Dharma meant parity did not apply and no justifiable sense of grievance arose. In light of the substantial delay, finality, and the lack of sufficient prospects, granting an extension...

Jurisdiction
Australia
Judgment Date
18 November 2013
Procedural Posture
Criminal Sentence Appeal / Application for Extension of Time Within Which to Apply for Leave to Appeal Against Sentence
Outcome
Application for extension of time dismissed.
Legal Topics
['robbery in Company Causing Grievous Bodily Harm' 'standard Non Parole Period' 'muldrock Error' 'extension of Time' 'finality' 'criminal Appeal Act 1912 (nsw) S6(3)' 'sentence Commencement Date After Parole Revocation' 'parity Principle']
['criminal Law' 'sentencing'] ['robbery in Company Causing Grievous Bodily Harm' 'standard Non Parole Period' 'muldrock Error' 'extension of Time' 'finality' 'criminal Appeal Act 1912 (nsw) S6(3)' 'sentence Commencement Date After Parole Revocation' 'parity Principle']

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Procedural Posture

Criminal Sentence Appeal / Application for Extension of Time Within Which to Apply for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the decision in Muldrock v The Queen entitled the applicant to an extension of time for leave to appeal against sentence.' 'Whether, despite established Muldrock error, a lesser sentence was warranted in law under s6(3) of the Criminal Appeal Act 1912 (NSW).' "Whether the sentencing judge's discretion miscarried in fixing the commencement date of the sentence after expiry of the balance of parole." 'Whether the sentencing judge erred by finding that parity was not in issue and whether the applicant had a justifiable sense of grievance when compared with the co-accused Dharma.']

Ratio Decidendi

Although Muldrock error was established, the Court held that no lesser sentence was warranted in law given the maximum penalty, the seriousness and viciousness of the offending, the applicant's principal role, absence of remorse, and the aggravating circumstance that the offence was committed shortly after release to parole for armed robbery. The sentencing judge did not err in fixing the sentence to commence after expiry of the revoked parole period, and the substantial differences between the applicant and Dharma meant parity did not apply and no justifiable sense of grievance arose. In light of the substantial delay, finality, and the lack of sufficient prospects, granting an extension...

Court Disposition

Application for extension of time dismissed.

Orders

  • ['Application for extension of time dismissed.']