McCabe v Regina [2006] NSWCCA 220

McCabe v Regina [2006] NSWCCA 220

The sentencing judge erred in treating multiple victims and prior convictions as aggravating factors and in failing to backdate sentence for pre-sentence custody; court is justified in intervening to adjust the non-parole period but not in resentencing, as no other sentence was warranted in law.

Parties
Appellant: Shane Anthony McCabe; Respondent: Crown
Jurisdiction
Australia
Judgment Date
24 July 2006
Procedural Posture
Criminal Appeal / Leave to Appeal; Severity Appeal; Sentencing
Outcome
Leave to appeal granted; appeal allowed in part; non-parole period varied for one offence.
Legal Topics
Sentencing, Aggravating Factors, Prior Convictions, Non Parole Period, Pre Sentence Custody, Drug Court Programme
Criminal Law Sentencing Aggravating Factors Prior Convictions Non Parole Period Pre Sentence Custody Drug Court Programme

Case Brief

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Parties

Shane Anthony McCabe

Appellant

Crown

Respondent

Procedural Posture

Criminal Appeal / Leave to Appeal; Severity Appeal; Sentencing

Legal Issues

  1. 1 Whether multiple victims across range of offending constitutes an aggravating factor under s 21A(2)(m) of Crimes (Sentencing Procedure) Act 1999 (NSW)
  2. 2 Whether prior convictions are an aggravating factor under s 21A(2)(d) of Crimes (Sentencing Procedure) Act 1999 (NSW)
  3. 3 Whether trial judge failed to have regard to pre-sentence custody in setting non-parole period

Ratio Decidendi

The sentencing judge erred in treating multiple victims and prior convictions as aggravating factors and in failing to backdate sentence for pre-sentence custody; court is justified in intervening to adjust the non-parole period but not in resentencing, as no other sentence was warranted in law.

Court Disposition

Leave to appeal granted; appeal allowed in part; non-parole period varied for one offence.

Orders

  • Grant leave to appeal.
  • Appeal allowed in part.