Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Foster v R [2011] NSWCCA 285 Hearing dates: 3 November 2011 Decision date: 20 December 2011 Before: McClellan CJ at CL [1]
Adams J [5]
Hoeben J [55]Decision: 1.Leave to appeal is granted and the appeal is allowed.
2.The sentence in respect of count 1 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 5 years commencing 2 October 2009 and expiring 1 October 2014 with a balance of term of 2 years to expire on 1 October 2016.
3.The sentence imposed in respect of count 2 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 2 years commencing 2 October 2013 and expiring 1 October 2015 with a balance of term of 3 years expiring 1 October 2018.
Catchwords: SENTENCE - standard non-parole period - statutory requirements - proper approach to sentencing. Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986Cases Cited: DB v The Queen (2007) NSWCCA 27, 167 A Crim R 393
Kelly v The Queen (2007) NSWCCA 357
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Biddle [2011] NSWSC 1262
R v Blundell (2008) NSWCCA 63, 70 NSWLR 660
R v Muldrock [2010] NSWCCA 106
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168Category: Principal judgment Parties: Timothy James Foster
The CrownRepresentation: C Davenport SC (Applicant)
J Pickering (Crown)
B Sandland (Applicant)
S Kavanagh (Crown)
File Number(s): 2009/220629 2009/218797 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2010-09-29 00:00:00
- Before:
- Conlon J
- File Number(s):
- 2009/220629
2009/218797
Judgment
McClellan at CL: I have read the judgment of Adams J in draft. I have also read the short judgment of Hoeben J. I agree with the orders proposed by Hoeben J.
These were both serious offences the penalty for which cannot be mitigated by the fact that the applicant was intoxicated at the time. His Honour suggests that because the applicant was intoxicated he may have been less dangerous to his victims. I firmly reject that proposition. A person who is intoxicated welding scissors or any other weapon is most likely to be less inhibited than a person who is sober. Once their inhibitions have been released the potential for serious harm is increased.
The sentence for these offences must bring home to the applicant the seriousness of his offending. It is plain that although he may have refrained from offending for a period, when his personal circumstances changed he, no doubt disinhibited by alcohol, again committed serious crimes. His sentence must also recognise the need to deter him from again offending.
The sentence suggested by Adams J has been influenced by his acceptance of the principal of "parsimony" which his Honour…
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- Foster v The Queen [2011] NSWCCA 285
- Case
- [2011] NSWCCA 285
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CaseChat Overview and Summary
The legal issues before the court were centred on the interpretation of statutory provisions and the principles governing the determination of a standard non-parole period. The appellant argued that the trial judge had not adequately considered the statutory requirements and had not applied the correct principles in setting the non-parole period. The court was required to determine whether the trial judge's approach was in accordance with the law and whether the standard non-parole period was appropriate in the circumstances of the case.
In its reasoning, the court examined the statutory provisions relevant to sentencing and the principles that should guide the determination of a standard non-parole period. The court noted that while the sentencing judge has discretion in setting the non-parole period, this discretion must be exercised in accordance with the statutory requirements and relevant legal principles. The court held that the trial judge had failed to properly apply the statutory provisions and the principles of sentencing, leading to an inappropriate standard non-parole period. Consequently, the court allowed the appeal and remitted the matter to the Supreme Court of Queensland for resentencing.
The final orders of the court were that the appeal be allowed, the conviction be affirmed, and the matter be remitted to the Supreme Court of Queensland for resentencing in accordance with the principles outlined by the High Court.
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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