Do v R [2010] NSWCCA 182

Do v R [2010] NSWCCA 182

Because the applicant pleaded guilty before committal, s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008 required a 25 percent discount. The sentencing judge allowed only 20 percent, which was a material error requiring the sentences to be quashed. On resentencing, the prohibited pistol offence was significantly above the middle range of objective seriousness: the pistol was loaded and unsecured, possessed in a public street by a member of a heavily armed group, and no acceptable innocent explanation mitigated the seriousness. The applicant offended while on parole, had prior relevant convictions, and required specific deterrence and community protection. Totality did not...

Jurisdiction
Australia
Judgment Date
19 August 2010
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted, appeal allowed, sentences quashed and the applicant resentenced.
Legal Topics
['firearms Offences' 'guilty Plea Discount' 'criminal Case Conferencing Trial Act 2008' 'totality' 'special Circumstances' 'resentencing']
['criminal Law' 'sentencing'] ['firearms Offences' 'guilty Plea Discount' 'criminal Case Conferencing Trial Act 2008' 'totality' 'special Circumstances' 'resentencing']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred by allowing a 20 percent discount for the guilty pleas rather than the 25 percent discount required by s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008.' 'Whether the sentences should be quashed and the applicant resentenced.' 'Whether totality or special circumstances justified a reduction of the non-parole period.' 'What sentences were appropriate on resentencing for possession of a prohibited pistol and possession of an unregistered firearm.']

Ratio Decidendi

Because the applicant pleaded guilty before committal, s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008 required a 25 percent discount. The sentencing judge allowed only 20 percent, which was a material error requiring the sentences to be quashed. On resentencing, the prohibited pistol offence was significantly above the middle range of objective seriousness: the pistol was loaded and unsecured, possessed in a public street by a member of a heavily armed group, and no acceptable innocent explanation mitigated the seriousness. The applicant offended while on parole, had prior relevant convictions, and required specific deterrence and community protection. Totality did not...

Court Disposition

Leave to appeal granted, appeal allowed, sentences quashed and the applicant resentenced.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Quash the sentences and in lieu thereof sentence the applicant as follows: count 1 imprisonment for a non parole period of three years eleven months to commence on 19 June 2009 and expire on 18 May 2013 and a balance of term of one year four months to expire on 18...