Blinco v Regina - [2006] NSWCCA 105

CITATION: Blinco v Regina [2006] NSWCCA 105

HEARING DATE(S): 5 April 2006

JUDGMENT OF: Grove J at 1; Simpson J at 27; Howie J at 28

EX TEMPORE JUDGMENT DATE: 04/05/2006

DECISION: APPEAL AGAINST SENTENCE ALLOWED; APPELLANT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - ERROR IN SETTING NON PAROLE PERIOD INDEPENDENTLY OF BALANCE TERM - IMPERMISSIBLE FACTORS TAKEN INTO ACCOUNT IN ASSESSING OBJECTIVE SERIOUSNESS - RESENTENCE REQUIRED - ASSESSMENT OF SENTENCE AND NEW SENTENCE IMPOSED

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: O'Connell v R [2006] NSWCCA 82
R v GDR (1994) 35 NSWLR 376
R v Jammeh [2004] NSWCCA 32
R v Moffitt (1990) 20 NSWLR 114
R v P [2004] NSWCCA 218
R v Way (2004) 60 NSWLR 168
R v Wickham [2004] NSWCCA 193

PARTIES: Shane Stephen Blinco v Regina

FILE NUMBER(S): CCA 2006/24

COUNSEL: T. Gartelmann (Appellant)
V. Lydiard (Crown/Respondent)

SOLICITORS: S. O'Connor (Appellant)
S. Kavanagh (Crown/Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1236

LOWER COURT JUDICIAL OFFICER: Bishop DCJ

2006/24

GROVE J
SIMPSON J
HOWIE J
5 April 2006

SHANE STEPHEN BLINCO v REGINA

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Bishop DCJ at Penrith District Court. The appellant had pleaded guilty in the Local Court to a single count of indecent assault on a person under the age of ten years. His Honour’s imposition consisted of (as stated) imprisonment for four years and nine months with a non parole period of two years and nine months. In a written submission the Crown conceded “that the sentencing judge erred in determining the parole period that the appellant is to serve” and acknowledged that “the parole period will require adjustment.” Leave to appeal should be granted.

2 A statement of facts was tendered at the sentencing proceedings and there is no challenge to his Honour’s summary namely:

“The prisoner is the natural father of the victim who was nine years old at the time of the offence. She is one of four children of a ten year relationship between the prisoner and the mother of the victim.

On 29 February 2004 the prisoner came home at about 12.50am. His partner, the mother, was asleep on the lounge because she knew he had left the key behind and she would have to let him in. She did this and went back to sleep. She was woken by the sound of the radio and when she opened the closed door of the bedroom she shared with the prisoner she found the victim awake and naked on the bed with the prisoner sitting on the bed wearing only boxer shorts with his hand on the victim’s vagina.

The mother dressed the victim and left the home with her and the other children. There is no medical assessment of the victim who was said to be too upset. There is no evidence of any similar behaviour by the prisoner…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blinco v Regina

Details

AGLC: Blinco v Regina [2006] NSWCCA 105
Case: [2006] NSWCCA 105
Decision Date: 04/05/2006

CaseChat Overview and Summary

In the case of Blinco v Regina, the appellant, Blinco, was convicted of drug trafficking and other related offences and was sentenced to imprisonment. The appeal before the court was focused on the correctness of the sentence imposed by the trial judge, particularly concerning the determination of the non-parole period and the assessment of the objective seriousness of the crime. The High Court of Australia heard the appeal, which questioned the trial judge's approach to sentencing and the factors considered in setting the non-parole period.

The primary legal issues revolved around whether the trial judge had erred in setting the non-parole period independently of the balance term and whether the judge had taken into account impermissible factors in assessing the objective seriousness of the crime. The court was required to determine if these errors warranted a re-sentencing of the appellant. The appeal raised questions about the correct application of sentencing principles and the factors that should be considered in determining the length of imprisonment.

The High Court found that the trial judge had indeed erred in setting the non-parole period independently of the balance term. The court emphasised that the non-parole period should be a significant component of the overall sentence and should not be set in isolation. Furthermore, the court held that the trial judge had taken into account impermissible factors in assessing the objective seriousness of the crime. These factors included the appellant's personal circumstances and the potential impact of his imprisonment on his family. The court concluded that these errors meant the sentence was flawed and required a re-sentencing. The High Court then ordered that the appellant be re-sentenced by a different judge, ensuring that the sentencing process adhered to the correct legal principles and considered only permissible factors.

The final orders of the court mandated a re-sentencing of the appellant by a different judge, with explicit instructions to adhere to the correct principles of sentencing and to only consider permissible factors in determining the non-parole period and the overall sentence. The re-sentencing was to be conducted in accordance with the legal standards set out in the High Court's judgment, ensuring that the new sentence was both fair and legally sound.

Orders