TRUSS v REGINA [2008] NSWCCA 325

TRUSS v REGINA [2008] NSWCCA 325

The sentencing judge should have made some allowance for the restriction on the applicant's liberty while he was in the Salvation Army Bridge residential rehabilitation program, and an allowance of three months would not infringe s 6(3) of the Criminal Appeal Act 1912. The judge was entitled to form an adverse view about the applicant's prospects of rehabilitation given his alcohol use, breach of bonds, failure to observe the program prohibition, and limited insight; no further reduction for special circumstances was warranted because it would fail to reflect the objective gravity of the offence.

Jurisdiction
Australia
Judgment Date
15 December 2008
Procedural Posture
Sentence Appeal / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced.
Legal Topics
['aggravated Break Enter and Commit Affray' 'pre Sentence Quasi Custody' 'residential Rehabilitation Program' 'prospects of Rehabilitation' 'standard Non Parole Period']
['criminal Law' 'sentencing'] ['aggravated Break Enter and Commit Affray' 'pre Sentence Quasi Custody' 'residential Rehabilitation Program' 'prospects of Rehabilitation' 'standard Non Parole Period']

Case Brief

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Procedural Posture

Sentence Appeal / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to take into account time the applicant spent in a residential rehabilitation program.' 'Whether the sentencing judge erred in finding that there were no real prospects of rehabilitation.' 'Whether any allowance for residential rehabilitation custody would reduce the sentence below a level sufficient to reflect the objective seriousness of the offence.']

Ratio Decidendi

The sentencing judge should have made some allowance for the restriction on the applicant's liberty while he was in the Salvation Army Bridge residential rehabilitation program, and an allowance of three months would not infringe s 6(3) of the Criminal Appeal Act 1912. The judge was entitled to form an adverse view about the applicant's prospects of rehabilitation given his alcohol use, breach of bonds, failure to observe the program prohibition, and limited insight; no further reduction for special circumstances was warranted because it would fail to reflect the objective gravity of the offence.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced.

Orders

  • ['Grant leave to appeal and allow the appeal.' 'The sentence imposed on 24 August 2007 is quashed.' 'In lieu, applicant sentenced to a non-parole period of 3 years and 4 months to date from 28th February 2007, expiring on 27th June 2010, with a balance of term of 1 year and 2 months to date from 28th June 2010,...