Cross v R [2012] NSWCCA 114

Cross v R [2012] NSWCCA 114

Leave to appeal was granted and the appeal allowed because the sentencing judge imposed an impermissible fixed term for Count 1, materially erred as to the maximum penalty for Count 2, and the resulting sentencing structure required reconsideration. On resentencing, Count 1 was of low seriousness with a strong subjective case and justified an 18 month non-parole period after a 25% plea discount; Count 2 was of reasonably low seriousness and warranted a 15 month fixed term; Count 3 was serious but, absent a Crown appeal, was adjusted only through totality and accumulation. The appropriate overall sentence was a non-parole period of 2 years and 9 months with an additional term of 2 years...

Jurisdiction
Australia
Judgment Date
10 September 2012
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentences quashed; Applicant resentenced; further submissions directed on s 50 Crimes (Sentencing Procedure) Act 1999.
Legal Topics
['aggravated Indecent Assault Against a Child Under 10' 'use of Carriage Service to Transmit Child Pornography' 'possession of Child Pornography' 'standard Non Parole Period' 'fixed Term Sentence' 'maximum Penalty Error' 'manifest Excess' 'totality' 'accumulation of Sentences']
['criminal Law' 'sentencing'] ['aggravated Indecent Assault Against a Child Under 10' 'use of Carriage Service to Transmit Child Pornography' 'possession of Child Pornography' 'standard Non Parole Period' 'fixed Term Sentence' 'maximum Penalty Error' 'manifest Excess' 'totality' 'accumulation of Sentences']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred by imposing a fixed term for Count 1, an offence carrying a standard non-parole period.' 'Whether the sentencing judge materially erred by treating the maximum penalty for Count 2 as 15 years when the applicable maximum penalty was 10 years.' 'Whether the overall sentence was manifestly excessive, including because of the fixed term on Count 2 and the full accumulation of Count 3.' 'Whether further submissions were required concerning a possible order under s 50 Crimes (Sentencing Procedure) Act 1999.']

Ratio Decidendi

Leave to appeal was granted and the appeal allowed because the sentencing judge imposed an impermissible fixed term for Count 1, materially erred as to the maximum penalty for Count 2, and the resulting sentencing structure required reconsideration. On resentencing, Count 1 was of low seriousness with a strong subjective case and justified an 18 month non-parole period after a 25% plea discount; Count 2 was of reasonably low seriousness and warranted a 15 month fixed term; Count 3 was serious but, absent a Crown appeal, was adjusted only through totality and accumulation. The appropriate overall sentence was a non-parole period of 2 years and 9 months with an additional term of 2 years...

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed; Applicant resentenced; further submissions directed on s 50 Crimes (Sentencing Procedure) Act 1999.

Orders

  • ['Leave to appeal granted.' 'Allow the appeal.' 'Quash the sentences imposed by Judge Woods QC.' 'In respect of Count 1 and taking into account the matter on the Form 1, impose a non-parole period of 18 months commencing 9 March 2010 and expiring 8 September 2011 with a balance of term of 6 months.' 'In respect of...