Cassidy v R [2012] NSWCCA 68

Cassidy v R [2012] NSWCCA 68

The sentencing judge considered an intention to kill as an element of the offence, thus contravening the De Simoni principle, since intention to kill is an element of a more serious offence (attempted murder) carrying a standard non-parole period, even if the maximum penalty is the same. The appeal is allowed and the sentence recalculated without impermissible consideration of intent to kill.

Jurisdiction
Australia
Judgment Date
23 April 2012
Procedural Posture
Appeal Against Sentence / Leave to Appeal Granted; Judgment on Appeal
Outcome
Appeal allowed; sentence varied
Legal Topics
['sentencing' 'aggravating Circumstances' 'application of De Simoni Principle' 'standard Non Parole Period']
['criminal Law'] ['sentencing' 'aggravating Circumstances' 'application of De Simoni Principle' 'standard Non Parole Period']

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Procedural Posture

Appeal Against Sentence / Leave to Appeal Granted; Judgment on Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge impermissibly took into account a circumstance of aggravation constituting an element of a more serious uncharged offence' "Whether offences with standard non-parole periods are 'more serious' for purposes of De Simoni principle"]

Ratio Decidendi

The sentencing judge considered an intention to kill as an element of the offence, thus contravening the De Simoni principle, since intention to kill is an element of a more serious offence (attempted murder) carrying a standard non-parole period, even if the maximum penalty is the same. The appeal is allowed and the sentence recalculated without impermissible consideration of intent to kill.

Court Disposition

Appeal allowed; sentence varied

Orders

  • ['Grant leave to appeal against the sentence.' 'Quash the sentence and non-parole period imposed in the District Court.' 'Sentence the applicant to a non-parole period of nine years with a balance of term of three years to date from 30 September 2009.' 'He will be eligible for release to parole on 29 September 2018.']