Cross v R (No. 2) [2012] NSWCCA 234

Cross v R (No. 2) [2012] NSWCCA 234

Although strict compliance with s 50 likely obliges a court to make a parole order notwithstanding that it cannot be complied with because of another sentence, no parole order should be made for Count 1 because its non-parole period had expired before the Court's re-sentencing and such an order would be entirely futile. A parole order should be made for Count 3 with the additional conditions proposed by the Applicant, as those conditions were appropriate in light of the offences.

Jurisdiction
Australia
Judgment Date
21 November 2012
Procedural Posture
Criminal Sentencing Appeal / Consequential Orders Concerning Parole Orders After Judgment Delivered on 10 September 2012
Outcome
The sentences imposed on 10 September 2012 were varied and the Applicant was directed to be released to parole on 8 December 2012 with additional conditions.
Legal Topics
['parole Orders' 'partly Cumulative Sentences' 'non Parole Periods' 'additional Parole Conditions']
['criminal Law' 'sentencing'] ['parole Orders' 'partly Cumulative Sentences' 'non Parole Periods' 'additional Parole Conditions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentencing Appeal / Consequential Orders Concerning Parole Orders After Judgment Delivered on 10 September 2012

Legal Issues

  1. 1 ['Whether s 50 of the Crimes (Sentencing Procedure) Act 1999 mandated the making of a parole order in respect of Count 1 where the Applicant was required to serve further terms of imprisonment after expiry of the non-parole period for Count 1.' 'Whether a parole order should be made where the non-parole period for Count 1 had expired before re-sentencing by the Court.' 'Whether additional parole conditions should be imposed.']

Ratio Decidendi

Although strict compliance with s 50 likely obliges a court to make a parole order notwithstanding that it cannot be complied with because of another sentence, no parole order should be made for Count 1 because its non-parole period had expired before the Court's re-sentencing and such an order would be entirely futile. A parole order should be made for Count 3 with the additional conditions proposed by the Applicant, as those conditions were appropriate in light of the offences.

Court Disposition

The sentences imposed on 10 September 2012 were varied and the Applicant was directed to be released to parole on 8 December 2012 with additional conditions.

Orders

  • ['In respect of Count 1 and taking into account the matter on the Form 1, 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 Count 2 and taking into account the matter on the Form 16BA, a fixed term of 15 months commencing 9 June...