Andrews v Regina [2011] NSWCCA 24

Andrews v Regina [2011] NSWCCA 24

Although the sentencing judge incorrectly stated that the applicant's intellectual disability and poor impulse control were not relevant to objective seriousness, the error did not operate to the applicant's disadvantage because the sentence was very lenient, within the reasonable range, and the judge was mindful of the applicant's intellectual disability and its causal significance. However, five days of pre-sentence custody from 9 March 2008 to 13 March 2008 were solely referrable to the subject offence and should have been credited by backdating the sentence commencement date.

Jurisdiction
Australia
Judgment Date
28 February 2011
Procedural Posture
Sentence Appeal / Application for Leave to Appeal Against Sentence; Leave Granted, Applicant Re Sentenced to Account for Pre Sentence Custody, Appeal Otherwise Dismissed
Outcome
Application for leave to appeal granted; applicant re-sentenced to account for five days of pre-sentence custody; appeal otherwise dismissed.
Legal Topics
['break, Enter and Commit Serious Indictable Offence in Circumstances of Aggravation' 'objective Seriousness' 'intellectual Disability and Poor Impulse Control' 'standard Non Parole Period' 'pre Sentence Custody' 'backdating Sentence']
['criminal Law' 'sentencing'] ['break, Enter and Commit Serious Indictable Offence in Circumstances of Aggravation' 'objective Seriousness' 'intellectual Disability and Poor Impulse Control' 'standard Non Parole Period' 'pre Sentence Custody' 'backdating Sentence']

Case Brief

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Procedural Posture

Sentence Appeal / Application for Leave to Appeal Against Sentence; Leave Granted, Applicant Re Sentenced to Account for Pre Sentence Custody, Appeal Otherwise Dismissed

Legal Issues

  1. 1 ["Whether the sentencing judge erred in assessing the objective seriousness of the offence by excluding the applicant's intellectual disability and poor impulse control from consideration." 'Whether five days of pre-sentence custody from 9 March 2008 to 13 March 2008 were solely referrable to the subject offence and should have been taken into account.' 'Whether the sentence imposed was otherwise outside the reasonable range or warranted appellate intervention.']

Ratio Decidendi

Although the sentencing judge incorrectly stated that the applicant's intellectual disability and poor impulse control were not relevant to objective seriousness, the error did not operate to the applicant's disadvantage because the sentence was very lenient, within the reasonable range, and the judge was mindful of the applicant's intellectual disability and its causal significance. However, five days of pre-sentence custody from 9 March 2008 to 13 March 2008 were solely referrable to the subject offence and should have been credited by backdating the sentence commencement date.

Court Disposition

Application for leave to appeal granted; applicant re-sentenced to account for five days of pre-sentence custody; appeal otherwise dismissed.

Orders

  • ['The application for leave to appeal is granted.' 'The applicant is to be re-sentenced to a non-parole period of 2 years and 6 months commencing 27 August 2009 and to expire on 26 February 2012 with a parole period of 2 years and 6 months to expire on 26 August 2014.' 'The appeal otherwise be dismissed.']