Blinco v Regina [2006] NSWCCA 105

Blinco v Regina [2006] NSWCCA 105

Appellate intervention was required because the sentencing judge erred by setting the non-parole period independently of the total sentence and by using impermissible matters, namely the plea of guilty and absence of penetration, in assessing objective seriousness. On resentencing, the offence was below the middle of the range of seriousness but involved a gross breach of trust; taking all matters into account, including a 25 percent discount for the earliest guilty plea and special circumstances for supervision, the appropriate sentence was three years imprisonment with a non-parole period of one year six months.

Jurisdiction
Australia
Judgment Date
05 April 2006
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentence in the Court of Criminal Appeal
Outcome
Appeal against sentence allowed; appellant resentenced.
Legal Topics
['indecent Assault on a Person Under the Age of Ten Years' 'non Parole Period' 'standard Non Parole Period' 'objective Seriousness' 'guilty Plea Discount' 'breach of Trust' 'special Circumstances' 'parole Order']
['criminal Law' 'sentencing'] ['indecent Assault on a Person Under the Age of Ten Years' 'non Parole Period' 'standard Non Parole Period' 'objective Seriousness' 'guilty Plea Discount' 'breach of Trust' 'special Circumstances' 'parole Order']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by setting the non-parole period independently of the total sentence and balance term.' 'Whether impermissible factors, including the plea of guilty and absence of penetration, were taken into account in assessing objective seriousness.' 'Whether the sentence imposed was manifestly excessive or required appellate intervention.' 'Whether harm to the victim and family could be treated as an aggravating matter on the evidence.' 'What sentence should be imposed on resentencing.']

Ratio Decidendi

Appellate intervention was required because the sentencing judge erred by setting the non-parole period independently of the total sentence and by using impermissible matters, namely the plea of guilty and absence of penetration, in assessing objective seriousness. On resentencing, the offence was below the middle of the range of seriousness but involved a gross breach of trust; taking all matters into account, including a 25 percent discount for the earliest guilty plea and special circumstances for supervision, the appropriate sentence was three years imprisonment with a non-parole period of one year six months.

Court Disposition

Appeal against sentence allowed; appellant resentenced.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal against sentence allowed.' 'Sentence imposed in the District Court quashed and in lieu thereof the appellant sentenced to imprisonment consisting of a non parole period of one year six months commencing on 28 November 2004 and expiring on 27 May 2006 with a...