R v Simon [2005] NSWCCA 123

R v Simon [2005] NSWCCA 123

The sentencing judge did not err in the treatment of special circumstances because he recognised that special circumstances justified a reduction in the otherwise applicable non-parole period and made that finding before determining the non-parole period. However, the sentence was manifestly excessive. Although the s 33 offence was very serious, aggravated, and accompanied by Form 1 matters, the applicant was young, Aboriginal, had a deprived background, pleaded guilty with a 20 per cent discount, and had no history of violence. The appropriate starting sentence was 15 years, reduced by 20 per cent to 12 years, with special circumstances justifying a non-parole period of 8 years and a...

Jurisdiction
Australia
Judgment Date
05 April 2005
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Appeal From District Court
Outcome
Leave to appeal granted; appeal allowed; sentence imposed for the first count quashed and replaced with a non-parole period of 8 years and a balance of term of 4 years.
Legal Topics
['grievous Bodily Harm With Intent' 'attempted Armed Robbery' 'special Circumstances' 'non Parole Period' 'manifest Excess' 'form 1 Matters' 'aboriginal Offender Sentencing Considerations']
['criminal Law' 'sentencing' 'criminal Appeals'] ['grievous Bodily Harm With Intent' 'attempted Armed Robbery' 'special Circumstances' 'non Parole Period' 'manifest Excess' 'form 1 Matters' 'aboriginal Offender Sentencing Considerations']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Appeal From District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to take into account the finding of special circumstances in determining the non-parole period.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in the treatment of special circumstances because he recognised that special circumstances justified a reduction in the otherwise applicable non-parole period and made that finding before determining the non-parole period. However, the sentence was manifestly excessive. Although the s 33 offence was very serious, aggravated, and accompanied by Form 1 matters, the applicant was young, Aboriginal, had a deprived background, pleaded guilty with a 20 per cent discount, and had no history of violence. The appropriate starting sentence was 15 years, reduced by 20 per cent to 12 years, with special circumstances justifying a non-parole period of 8 years and a...

Court Disposition

Leave to appeal granted; appeal allowed; sentence imposed for the first count quashed and replaced with a non-parole period of 8 years and a balance of term of 4 years.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal and quash the sentence imposed for the first count on the indictment.' 'In lieu thereof there should be a non-parole period of 8 years to date from 2 June 2003 and to expire on 1 June 2011, the date upon which the applicant is eligible to be released to parole.' 'The...