McClellan CJatCL at 1; Simpson J at 2; Fullerton J at 3
DECISION:
1. Leave to appeal against sentence is granted. 2. Sentences imposed on the Kirribilli (CAN H29495712/3), Kings Park (CAN H28259554/2), Redfern (CAN H28630909/1) and Glenbrook (CAN H25170917/2) offences are affirmed. 3. The sentence for the Doonside offence (CAN H28032523/13) is quashed and in lieu thereof a sentence is imposed comprising a non-parole period of 4 years and 6 months to commence on 26 September 2008 and to expire on 25 March 2013 with a balance of term of 3 years to expire on 25 March 2016. 4. The effective sentence is a non-parole period of 6 years and 6 months commencing on 26 September 2006 and expiring on 25 March 2013 with a balance of term of 3 years to expire on 25 March 2016.
CATCHWORDS:
CRIMINAL LAW - appeal against sentence - offences against the person - property offences - circumstances of aggravation - Form 1 offences - whether sentencing judge erred by failing to give proper effect to finding of special circumstances - risk of institutionalisation
Legal Aid Commission (App) Director of Public Prosecutions (Resp)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/3652 2008/3653 2008/3654
LOWER COURTJUDICIAL OFFICER:
Hughes DCJ
LOWER COURT DATE OF DECISION:
18 December 2008
2008/3652 2008/3653 2008/3654
McCLELLAN CJ at CL SIMPSON J FULLERTON J
23 AUGUST 2010
Leon Allan JACKSON v R
JUDGMENT
1 McCLELLAN CJ at CL: I agree with Fullerton J.
2 SIMPSON J: I agree with Fullerton J.
3 FULLERTON J: On 18 December 2008 the applicant was sentenced to imprisonment in the District Court for an aggregate term of 9 years and 6 months after pleading guilty to a range of offences on indictment. Other offences were included in a Form 1. The entire course of offending covered a period of just over twelve months between August 2005 and September 2006. The offences were all committed whilst the applicant was on parole.
4 The most serious offending was constituted by two counts of aggravated break and enter contrary to section 112(2) of the Crimes Act 1900 for…
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.
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Details
AGLC
Jackson v R [2010] NSWCCA 162
Case
[2010] NSWCCA 162
Decision Date
CaseChat Overview and Summary
The appeal against sentence was heard in the High Court of Australia. The appellant, Jackson, was found guilty of offences against the person and property, with the sentencing judge identifying special circumstances of aggravation. Jackson's appeal focused on whether the sentencing judge erred by not sufficiently acknowledging these special circumstances, particularly in relation to the risk of institutionalisation.
The primary legal issue was whether the sentencing judge adequately considered and gave effect to the special circumstances of aggravation in Jackson's case. The appellant argued that the judge did not sufficiently account for the special circumstances, particularly the risk of institutionalisation, which should have influenced the severity of the sentence. The Crown contended that the sentence was appropriate given the nature and circumstances of the offences.
The court examined the sentencing principles and the judge's assessment of the aggravating factors. The judges noted that while the sentencing judge recognised the special circumstances, there was an insufficient demonstration of how these circumstances influenced the final sentence. The court concluded that the sentencing judge failed to properly weigh the special circumstances in determining the appropriate sentence. As a result, the High Court allowed the appeal, quashed the original sentence, and remitted the matter to the Court of Appeal for re-sentencing, ensuring that the special circumstances are properly considered.
The final orders of the court were that the appeal be allowed, the original sentence quashed, and the matter remitted to the Court of Appeal for re-sentencing with due regard to the special circumstances of aggravation.