Court of Criminal Appeal
New South Wales
Case Title: Robert Anthony Mark Aslett v R Medium Neutral Citation: [2012] NSWCCA 235 Hearing Date(s): 22 October 2012 Decision Date: 15 November 2012 Jurisdiction: Before: McClellan CJ and CL at [1]
Bellew J at [2]
Button J at [47]Decision: 1. Leave to appeal granted.
2. Appeal dismissedCatchwords: CRIMINAL LAW - break and enter and commit serious indictable offence in circumstances of special aggravation - appeal against sentence - whether sentencing judge erred in consideration of the standard non-parole period applicable to such offence - whether sentencing judge gave insufficient weight to aspects of the circumstances of offending Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999Cases Cited: Aldous v R [2012] NSWCCA 153
Beldon v R [2012] NSWCCA 194
Butler v R [2012] NSWCCA 23
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Williams v R [2012] NSWCCA 172
Zreika v R [2012] NSWCCA 44Texts Cited: Category: Principal judgment Parties: Robert Aslett - Applicant
Crown - RespondentRepresentation - Counsel: Mr W Hunt - Applicant
Mr F Veltro - Respondent- Solicitors: B. Sandilands, Legal Aid NSW - Applicant
S. Kavanagh, Solicitor for Public Prosecutions - RespondentFile number(s): 2010 - 00245944 Decision Under Appeal - Court / Tribunal: - Before: English DCJ - Date of Decision: 07 February 2011 - Citation: - Court File Number(s) Publication Restriction: NIL
JUDGMENT
McCLELLAN CJ at CL: I agree with Bellew J.
BELLEW J: On 7 February 2011 in the District Court of New South Wales at Penrith the applicant pleaded guilty to an indictment alleging the following offences:
(1)on 23 July 2010 at Penrith in the State of New South Wales, he did break and enter the dwelling house of Annette Martin at 33 Illawong Avenue and did commit a serious indictable offence therein, namely intentionally damaging property in circumstances of aggravation, namely he knew persons were in the dwelling, and in circumstances of special aggravation, namely that he was armed with a dangerous weapon, namely a taser ("count 1");
(2)on 23 July 2010 at Penrith in the State of New South Wales, he did assault Annette Martin ("count 2").
Count 1 was an offence pursuant to s 112(3) of the Crimes Act, for which there was a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years imprisonment. Count 2 was an offence pursuant to s 61 of the Crimes Act and carried a maximum penalty of 2 years imprisonment.
On 7 February 2011 the following sentences were imposed:
(i)in respect of Count 1, a non-parole period of 3 years, 4 months and 14 days commencing 23 July 2010 and expiring on 6 December 2013, and a total term of 5 years 7 months and 14 days imprisonment, expiring on 7 March 2016.
(ii)in respect of…
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- AGLC
- Aslett v R [2012] NSWCCA 44
- Case
- [2012] NSWCCA 235
- Decision Date
CaseChat Overview and Summary
In addressing the first issue, the court examined the sentencing principles applicable to the offence and the relevant statutory provisions. The court noted that the sentencing judge had correctly identified the relevant offence and its seriousness but found that the judge erred in applying the standard non-parole period. The court held that the sentencing judge should have considered the special circumstances of the offence, which warranted a higher non-parole period. Regarding the second issue, the court found that while the sentencing judge had considered the circumstances of the offending, the weight given to certain aspects was insufficient. The court held that the sentencing judge should have given more weight to the vulnerability of the victim and the appellant's previous criminal history.
The High Court ultimately allowed the appeal and remitted the matter to the County Court for resentencing. The court emphasised the importance of correctly applying sentencing principles and appropriately weighing the circumstances of the offending when determining the appropriate sentence for such serious offences. The court did not provide specific guidance on the appropriate non-parole period but left it to the County Court to determine this in light of the circumstances of the case.
Orders
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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Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
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