Behman v Regina [2014] NSWCCA 239

Behman v Regina [2014] NSWCCA 239

Ground 1 failed because the sentencing judge expressly considered the small amounts involved. Grounds 2 and 5 succeeded because indicative sentences of 16 months for each s 178BB offence, including the first offence, were manifestly excessive and revealed error by reference to Pearce v The Queen, pointing to an excessive aggregate sentence. Although Grealish was not a co-offender and the parity ground was not made out, Grealish was a strong guide to the appropriate range. The applicant was re-sentenced to an aggregate term of 2 years with a non-parole period of 18 months.

Jurisdiction
Australia
Judgment Date
29 October 2014
Procedural Posture
Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence
Outcome
Time extended; leave to appeal granted; appeal allowed; sentence imposed at first instance quashed; applicant re-sentenced and ordered to be released immediately.
Legal Topics
['aggregate Sentence' 'indicative Sentences' 'manifest Excess' 'parity' 'false Statement to Obtain Financial Advantage' 'false Evidence to the Police Integrity Commission']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggregate Sentence' 'indicative Sentences' 'manifest Excess' 'parity' 'false Statement to Obtain Financial Advantage' 'false Evidence to the Police Integrity Commission']

Case Brief

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Procedural Posture

Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective gravity of the offences under s 178BB and failed to take into account the small financial advantage involved.' 'Whether the sentences imposed for the offences under s 178BB were manifestly excessive and infected the aggregate sentence.' 'Whether the applicant had a justifiable sense of grievance due to disparity between his sentence and the sentence imposed on Peter Grealish.' 'Whether the sentencing judge failed to have proper regard to the principles in Pearce v The Queen in giving indicative sentences for an aggregate sentence.']

Ratio Decidendi

Ground 1 failed because the sentencing judge expressly considered the small amounts involved. Grounds 2 and 5 succeeded because indicative sentences of 16 months for each s 178BB offence, including the first offence, were manifestly excessive and revealed error by reference to Pearce v The Queen, pointing to an excessive aggregate sentence. Although Grealish was not a co-offender and the parity ground was not made out, Grealish was a strong guide to the appropriate range. The applicant was re-sentenced to an aggregate term of 2 years with a non-parole period of 18 months.

Court Disposition

Time extended; leave to appeal granted; appeal allowed; sentence imposed at first instance quashed; applicant re-sentenced and ordered to be released immediately.

Orders

  • ['Time in which to seek leave to appeal extended to 27 March 2014.' 'Leave to appeal granted.' 'Appeal allowed.' 'Sentence imposed at first instance quashed and, in substitution therefor, applicant sentenced to an aggregate term of imprisonment with a non-parole period of 18 months commencing on 15 February 2013 and...