R v Barker, R v Gibson [2006] NSWCCA 20

R v Barker, R v Gibson [2006] NSWCCA 20

Although the Crown conceded, in light of R v Drew [2005] NSWCCA 50, that the nominal sentences were within range, the sentencing judge's commencement dates produced an effective sentence that was excessively lenient. The delay did not warrant significant mitigation because the offences were not stale, the respondents had not been left in relevant uncertain suspense, and much of the delay followed their election to defend the charges. Proper application of totality did not justify making Barker's sentence add nothing to his non-parole period or making Gibson's additional effective non-parole period only four months. The error was corrected by quashing only the commencement dates, with...

Jurisdiction
Australia
Judgment Date
15 February 2006
Procedural Posture
Crown Appeal Against Sentence / Court of Criminal Appeal Appeal From District Court Sentences Imposed After Guilty Pleas
Outcome
Crown appeals allowed; sentences quashed only as to commencement dates; respondents resentenced by altering commencement dates and parole eligibility dates.
Legal Topics
['crown Appeal' 'aggravated Car Jacking' 'concurrent and Cumulative Sentences' 'totality' 'delay in Prosecution' 'standard Non Parole Period' 'parity' 'form 1 Offences']
['criminal Law' 'sentencing'] ['crown Appeal' 'aggravated Car Jacking' 'concurrent and Cumulative Sentences' 'totality' 'delay in Prosecution' 'standard Non Parole Period' 'parity' 'form 1 Offences']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence / Court of Criminal Appeal Appeal From District Court Sentences Imposed After Guilty Pleas

Legal Issues

  1. 1 ['Whether the sentences imposed for aggravated car jacking were manifestly inadequate.' 'Whether the sentencing judge erred by backdating the sentences so that they were concurrent or partly concurrent with sentences previously imposed for unrelated offences.' 'Whether delay before arrest and prosecution justified additional leniency under R v Todd [1982] 2 NSWLR 517.' 'Whether the principle of totality justified the commencement dates fixed by the sentencing judge.' 'Whether parity between the respondents affected the sentence to be imposed on the Crown appeal.']

Ratio Decidendi

Although the Crown conceded, in light of R v Drew [2005] NSWCCA 50, that the nominal sentences were within range, the sentencing judge's commencement dates produced an effective sentence that was excessively lenient. The delay did not warrant significant mitigation because the offences were not stale, the respondents had not been left in relevant uncertain suspense, and much of the delay followed their election to defend the charges. Proper application of totality did not justify making Barker's sentence add nothing to his non-parole period or making Gibson's additional effective non-parole period only four months. The error was corrected by quashing only the commencement dates, with...

Court Disposition

Crown appeals allowed; sentences quashed only as to commencement dates; respondents resentenced by altering commencement dates and parole eligibility dates.

Orders

  • ['In the case of the respondent Barker, the Crown appeal is allowed and the sentence imposed is quashed so far as the commencement date of the sentence is concerned.' 'The sentence for Barker is to commence from 4 August 2005 so that the non-parole period expires on 5 February 2007, the date upon which the...