Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Christian v R [2021] NSWCCA 300 Hearing dates: 18 October 2021 Date of orders: 14 December 2021 Decision date: 14 December 2021 Before: Beech-Jones CJ at CL at [1]
R A Hulme J at [43]
Dhanji J at [51]Decision: (1) Leave to appeal against sentence granted;
(2) Appeal allowed;
(3) The sentence imposed on the appellant on 26 November 2019 is set aside;
(4) In lieu thereof:
(a) Sentence the Appellant to an aggregate term of imprisonment of 7 years and 6 months commencing on 23 November 2017 and expiring on 22 May 2025,
(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 5 years expiring on 22 November 2022;
(c) Specify that the earliest date the applicant will be eligible to be released on parole is 22 November 2022;
(d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are those identified in [38] of this judgment.
Catchwords: SENTENCE APPEAL – aggregate sentence – numerous offences of intimidation and violence – finding of special circumstances but not given effect to – error – scope of re-exercise of sentencing discretion – whether confined to adjusting non-parole period or complete re-exercise required – Crown did not consent to confining appeal to adjusting non-parole period – sentencing discretion re-exercised
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Almaoiue v R [2021] NSWCCA 274
Haines v R [2016] NSWCCA 90
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Category: Principal judgment Parties: Rishaad Christian (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
L Brasch (Applicant)
C Curtis (Crown)
The Criminal Law Centre (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2017/147157 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 26 November 2019
- Before:
- Hanley SC DCJ
- File Number(s):
- 2017/147157
Judgment
-
BEECH-JONES CJ at CL: This is an application for leave to appeal from a sentence imposed for a number of offences of violence. The only ground of appeal is that, although the sentencing judge made a finding of “special circumstances” for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”), his Honour did not give effect to it when specifying a non-parole period. The Crown conceded that his Honour so erred. The parties disagreed about whether the error could be addressed by simply adjusting the non-parole period of the sentence imposed by…
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- AGLC
- Christian v R [2021] NSWCCA 300
- Case
- [2021] NSWCCA 300
- Decision Date
CaseChat Overview and Summary
The High Court found that the error in not considering special circumstances warranted a complete re-exercise of the sentencing discretion. The court held that the error was not confined to the adjustment of the non-parole period but required a complete re-evaluation of the sentence. The Crown had not consented to limiting the appeal to the adjustment of the non-parole period. Therefore, the court re-exercised its sentencing discretion, taking into account the special circumstances, and determined the appropriate sentence for the appellant. The court's decision emphasised the importance of correctly considering all relevant factors in sentencing, particularly when special circumstances are found to exist.
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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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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