Er v R [2018] NSWCCA 286

Er v R [2018] NSWCCA 286

Error was established in the sentencing judge's misapprehension of the co-offender's sentence and in applying an erroneous maximum penalty for drive while disqualified, requiring re-sentencing. Parity and totality principles, as well as the reduced statutory penalty, resulted in a lesser sentence for the applicant.

Jurisdiction
Australia
Judgment Date
07 December 2018
Procedural Posture
Criminal Appeal / Sentence Appeal, Leave to Appeal Granted, Re Sentencing
Outcome
Leave to appeal against sentence granted; appeal allowed; sentence quashed and applicant re-sentenced.
Legal Topics
['break, Enter and Steal' 'driving While Disqualified' 'sentencing' 'parity Principle' 'totality Principle' 'manifestly Excessive Sentence' 'maximum Penalty Error']
['criminal Law'] ['break, Enter and Steal' 'driving While Disqualified' 'sentencing' 'parity Principle' 'totality Principle' 'manifestly Excessive Sentence' 'maximum Penalty Error']

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Procedural Posture

Criminal Appeal / Sentence Appeal, Leave to Appeal Granted, Re Sentencing

Legal Issues

  1. 1 ['Whether sentencing judge misapprehended the sentence imposed upon a co-offender' 'Whether parity principle breached' 'Whether sentencing judge took into account the totality principle' 'Whether sentencing judge acted upon an erroneous maximum penalty for drive while disqualified offence' 'Whether overall sentence manifestly excessive']

Ratio Decidendi

Error was established in the sentencing judge's misapprehension of the co-offender's sentence and in applying an erroneous maximum penalty for drive while disqualified, requiring re-sentencing. Parity and totality principles, as well as the reduced statutory penalty, resulted in a lesser sentence for the applicant.

Court Disposition

Leave to appeal against sentence granted; appeal allowed; sentence quashed and applicant re-sentenced.

Orders

  • ['In respect of drive while disqualified (23 March 2016): imprisonment for 9 months commencing 1 October 2017 and expiring 30 June 2018.' 'For break enter and steal (23 March 2016): imprisonment with a non-parole period of 1 year and 8 months commencing 1 February 2018 and expiring 30 September 2019; balance of term...