WU v R [2010] NSWCCA 286

WU v R [2010] NSWCCA 286

The sentencing judge erred by failing to make any finding or reference to special circumstances justifying a departure from the statutory non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act, warranting a reduction of the non-parole period for counts (ii) and (iii) to 5 years in light of the applicant's youth and first custodial sentence. The sentences were not otherwise manifestly excessive and the partial accumulation was appropriate given the separateness of the offending.

Parties
Applicant: Tianhao Roy WU; Respondent: Regina
Jurisdiction
Australia
Judgment Date
07 December 2010
Procedural Posture
Criminal Appeal / Judgment on Application for Leave to Appeal and Resentencing
Outcome
Appeal allowed in part. Sentences on counts (ii) and (iii) quashed and resentenced. Sentence for count (i) confirmed.
Legal Topics
Sentencing, Drug Offences, Principle of Totality, Manifest Excess, Special Circumstances in Sentencing
Criminal Law Sentencing Drug Offences Principle of Totality Manifest Excess Special Circumstances in Sentencing

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Parties

Tianhao Roy WU

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Judgment on Application for Leave to Appeal and Resentencing

Legal Issues

  1. 1 Whether the sentencing judge erred in the application of the totality principle by failing to make all sentences concurrent
  2. 2 Whether the sentences imposed were manifestly excessive
  3. 3 Whether proper allowance was made for special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act

Ratio Decidendi

The sentencing judge erred by failing to make any finding or reference to special circumstances justifying a departure from the statutory non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act, warranting a reduction of the non-parole period for counts (ii) and (iii) to 5 years in light of the applicant's youth and first custodial sentence. The sentences were not otherwise manifestly excessive and the partial accumulation was appropriate given the separateness of the offending.

Court Disposition

Appeal allowed in part. Sentences on counts (ii) and (iii) quashed and resentenced. Sentence for count (i) confirmed.

Orders

  • Grant leave to appeal
  • Allow the appeal