Ross v R [2016] NSWCCA 176

Ross v R [2016] NSWCCA 176

The sentencing judge did not err in assessing the murder as well above the mid-range and approaching the worst case of murder. The objective gravity was supported by the victim's age and vulnerability, the applicant's position of trust, the repeated violent assaults, the severe head injuries, and the applicant's failure to seek medical treatment that was likely to have resulted in the child's survival. The limited evidence concerning protective custody and alleged onerous gaol conditions did not establish error, and no significant subjective factors warranted leniency. The sentence of 40 years with a non-parole period of 30 years was not manifestly excessive.

Jurisdiction
Australia
Judgment Date
17 August 2016
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['murder' 'objective Seriousness' 'manifest Excess' 'protective Custody' 'onerous Gaol Conditions' 'standard Non Parole Period' 'victim Under Three Years of Age' 'breach of Trust']
['criminal Law' 'sentencing'] ['murder' 'objective Seriousness' 'manifest Excess' 'protective Custody' 'onerous Gaol Conditions' 'standard Non Parole Period' 'victim Under Three Years of Age' 'breach of Trust']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding the offence was well above the mid-range of offences of murder and approaching the worst case of murder.' "Whether the sentencing judge failed to give weight to the applicant's onerous gaol conditions in protective custody, including claims of fear of violence and hyper-vigilance." 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in assessing the murder as well above the mid-range and approaching the worst case of murder. The objective gravity was supported by the victim's age and vulnerability, the applicant's position of trust, the repeated violent assaults, the severe head injuries, and the applicant's failure to seek medical treatment that was likely to have resulted in the child's survival. The limited evidence concerning protective custody and alleged onerous gaol conditions did not establish error, and no significant subjective factors warranted leniency. The sentence of 40 years with a non-parole period of 30 years was not manifestly excessive.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave be granted to appeal.' 'The appeal be dismissed.']