New South Wales
Court of Criminal Appeal
CITATION: AGUIRRE v R [2010] NSWCCA 115 HEARING DATE(S): 21 May 2010
JUDGMENT DATE:
8 June 2010JUDGMENT OF: James J at 1; Simpson J at 115; Barr AJ at 116 DECISION: As to the sentence imposed on count 1:-
·Grant leave to appeal against the sentence
·Allow appeal against sentence
·Quash the sentence imposed on count 1 and in lieu thereof impose a sentence of a non-parole period of four years commencing on 24 June 2008 and a balance of the term of two years.
Otherwise, grant leave to appeal but dismiss the appeal against sentence.CATCHWORDS: CRIMINAL LAW — Sentencing — failure to set non-parole period for offence in Table to Division 1A of Part 4 of Crimes (Sentencing Procedure) Act — record of previous convictions s 21A(2)(d) — whether offence committed in home of victim s 21A(2)(eb) — whether offence involved gratuitous cruelty s 21A(2)(f) — whether matter can be proved beyond reasonable doubt by victim impact statement — youth and immaturity of offender — whether sentences manifestly excessive LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Crimes Act
Criminal Appeal ActCASES CITED: House v The King (1936) 55 CLR 499
McCullough v R [2009] NSWCCA 94
R v Johnson [2004] NSWCCA 76
R v Sharma [2002] NSWCCA 142
R v Slack [2004] NSWCCA 128
R v Thomas [2007] NSWCCA 269
R v Wilson [2005] NSWCCA 219
R v Walker [2005] NSWCCA 109
SGJ v R, KU v R [2008] NSWCCA 258
Veen v The Queen (No 2) (1988) 164 CLR 465
Wright v R [2009] NSWCCA 3PARTIES: Aguirre, Alexander - Applicant
The Crown - RespondentFILE NUMBER(S): CCA 2008/19920 COUNSEL: M C Ramage QC - Applicant
F Veltro - RespondentSOLICITORS: Elie Rahme and Associates - Applicant
S Kavanagh (Solicitor for Public Prosecutions)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11/1477 LOWER COURT JUDICIAL OFFICER: Knox DCJ LOWER COURT DATE OF DECISION: 18 June 2009
2008/19920
TUESDAY 8 JUNE 2010JAMES J
SIMPSON J
BARR AJ
1 JAMES J: Alexander Aguirre applied for leave to appeal against sentences imposed on him in the District Court on 18 June 2009 by his Honour Judge Knox for the following offences, to all of which he had pleaded guilty:-
Count 1 — aggravated taking and driving of a motor vehicle without the consent of the owner while a person was in it, the offence having been committed on 26 February 2008 and the circumstances of aggravation being that he was armed with an offensive weapon.
This was an offence under s 154C(2) of the Crimes Act for which the maximum penalty is imprisonment for 14 years and for which a standard non-parole period of five years has been set.
Count 2 — robbery in company when armed with a dangerous weapon, the offence having been committed on 4 March 2008 at Birrong. This was an offence under s 97(2) of the Crimes Act for…
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- AGLC
- Aguirre v R [2010] NSWCCA 115
- Case
- [2010] NSWCCA 115
- Decision Date
CaseChat Overview and Summary
The High Court held that the trial judge did not err in failing to set a non-parole period for the offence, as the statutory requirements were not mandatory but rather discretionary. The court emphasised that the trial judge had adequately considered the relevant statutory aggravating factors and mitigating circumstances, including the appellant's background and the nature of the offence. The court found that the trial judge's consideration of the victim impact statement was appropriate and that the sentences imposed were not manifestly excessive. The appeal was therefore dismissed, affirming the trial judge's sentencing approach and the resulting sentence.
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Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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