Panetta v R

Case [2016] NSWCCA 85


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Panetta v R [2016] NSWCCA 85
Hearing dates:17 November 2015
Decision date: 13 May 2016
Before: Ward JA at [1];
Adams J at [9];
Bellew J at [60]
Decision:

1.   Leave to appeal granted.
2.   Appeal allowed.
3.   Sentence imposed by the primary judge quashed.
4.   In lieu thereof, the appellant is sentenced to a non-parole period of 9 years imprisonment commencing on 12 November 2010 and expiring on 11 November 2019, with an additional term of 3 years imprisonment, commencing on 12 November 2019 and expiring on 11 November 2022.

Catchwords: CRIMINAL LAW – sentence appeal – murder –sentencing judge erred in failing to quantify discount for assistance to authorities – offender resentenced – discounts to be applied for plea and for assistance – reduction where combined discount would produce sentence disproportionate to nature and circumstances of offending
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23, 44, 101A
Criminal Appeal Act 1912 (NSW), ss 5DA, 6(3)
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 11, 12
Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; 305 ALR 323
CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1
Director of Public Prosecutions v England (1999) 106 A Crim R 99
Eastman v R [2000] HCA 29; 203 CLR 1; 172 ALR 39
Hawkins v R [2011] NSWCCA 153
Horne v R [2014] NSWCCA 133.
Isaac v R [2012] NSWCCA 195
Kentwell v The Queen [2014] HCA 37; 252 CLR 601; 238 A Crim R 134
Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126
Muldrock v R [2011] HCA 39; 244 CLR 120; 212 A Crim R 254
PK v R [2012] NSWCCA 263
R v Anderson [1981] VicRp 17; [1981] VR 155; (1980) 2 A Crim R 379
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415
R v Ellis (1986) 6 NSWLR 603
R v Garforth (unreported, New South Wales Court of Appeal, Gleeson CJ, McInerney and Mathews JJ, 23 May 1994)
R v Goundar [2010] NSWSC 1170
R v JSK [2004] NSWSC 470
R v Krbavac [2013] NSWSC 313
R v Mooney (unreported, Victorian Court of Appeal, 21 June 1978)
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104
R v TNT [2002] NSWSC 537
R v Tuncbilek [2004] NSWCCA 139
R v Yeo [2002] NSWSC 315
R v Windle [2012] NSWCCA 222
R v Z [2006] NSWCCA 342; 167 A Crim R 436
Raad v R [2011] NSWCCA 138; 220…

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Panetta v R [2016] NSWCCA 85
Case
[2016] NSWCCA 85
Decision Date

CaseChat Overview and Summary

The appeal in this case was brought by the defendant, Mr Panetta, against the sentence he received for murder. The sentencing judge had imposed a sentence which did not sufficiently account for the defendant’s cooperation with the authorities, which the defendant argued constituted an error of law. The High Court of Australia was tasked with determining whether the sentencing judge erred in failing to quantify the discount for the defendant’s assistance to the authorities.

The key legal issue before the court was whether the sentencing judge failed to appropriately account for the discount that should be applied for the defendant’s assistance to the authorities, and if this constituted an error of law that warranted a re-sentencing. The court also needed to determine the appropriate quantum of the discount, and whether the combined discount for the defendant’s plea and assistance should be applied in a way that did not result in a sentence that was disproportionate to the nature and circumstances of the offence.

The High Court found that the sentencing judge indeed erred by not quantifying the discount for the defendant’s assistance to the authorities. The court held that the defendant was entitled to a discount for both his plea and for his assistance, and that the combined effect of these discounts should be applied in a manner that did not result in a sentence that was disproportionate to the offence. The court concluded that the sentence should be re-assessed to reflect these factors, and the defendant was resentenced accordingly. The court held that the total discount for the plea and assistance should be applied in a manner that avoided a sentence that was excessively lenient or harsh in relation to the crime committed.

Orders

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Background

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Decision

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