New South Wales
Court of Criminal Appeal
CITATION: Yammine v R [2010] NSWCCA 123 HEARING DATE(S): 08/06/2010
JUDGMENT DATE:
23 June 2010JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Barr AJ at 3 DECISION: 1. Grant leave to appeal against the sentence for the offence committed under s 51D(2) Firearms Act 1996.
2. Dismiss the appeal.
3. Refuse leave to appeal against the sentence for the offence committed under s 35 Crimes Act 1900.CATCHWORDS: Appeal against sentence - aggravated unauthorised possession of firearms - sentencing judge misinformed about standard non-parole period - error in sentencing - whether less severe sentence warranted in law - Application for leave to appeal against sentence - malicious wounding - knife used - sentence not manifestly excessive - sentence already expired - leave refused LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 32
Firearms Act 1996 - s 51D(2)
Crimes Act 1900 - s 35(1)(a)
Crimes (Sentencing Procedure) Amendment Act 2008 - Sched 2 cl 17
Interpretation Act 1987 - ss 3, 34
Criminal Appeal Act 1912 - s 6(3)CATEGORY: Principal judgment CASES CITED: Harrison v Melhem[2008] NSWCA 67
R v Mack [2009] NSWCCA 216
R v Middlebrook [2004] NSWCCA 49
R v Gardiner [2006] NSWCCA 190
R v Brown [2006] NSWCCA 249
R v George (2004) 149 A Crim R 38
Nowak v R [2008] NSWCCA 89
R v Astill (No 2) (1992) 64 A Crim R 289
R v Simpson [2001] NSWCCA 534
R v Douar [2005] NSWCCA 455PARTIES: Norman Yammine v Regina
FILE NUMBER(S): CCA 2007/11954; 2007/14352 COUNSEL: S Dowling - Crown
P Strickland SC - ApplicantSOLICITORS: S Kavanagh - Crown
Nyman Gibson Stewart Lawyers - ApplicantLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/11954; 2007/14352 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 19/12/2008
2007/11954
2007/14352WEDNESDAY 23 JUNE 2010McCLELLAN CJ at CL
BUDDIN J
BARR AJ
1 McCLELLAN CJ AT CL: I agree with Barr AJ.
2 BUDDIN J: I agree with Barr AJ.
3 BARR AJ: The applicant, Norman Yammine, seeks leave to appeal against sentences imposed by Judge Nield in the District Court. For the offence that on 6 November 2005 at Terrigal the applicant maliciously wounded Aaron Vickers, his Honour set a non-parole period of 2 years and 3 months, commencing on 2 May 2006 and a balance of term of 1 year and 1 month. For the offence that on 2 May 2006 at Auburn the applicant possessed more than 3 unregistered firearms without permit or licence, and taking into account 23 offences under s 32 of the Crimes (Sentencing Procedure) Act, his Honour set a non-parole period of 3 years and 6 months commencing on 2 August 2008 and a balance of term of 3 years and 3 months. The total effective head sentence was 9 years and the effective non-parole period was 5 years and 9 months.
4 At about 3.30am on 6 November 2005…
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- AGLC
- Yammine v R [2010] NSWCCA 123
- Case
- [2010] NSWCCA 123
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the sentencing judge's error in understanding the standard non-parole period constituted a significant error in the sentencing process. The court was required to determine if this error warranted a reduction in the appellant's sentence. Another issue was whether the sentence imposed was manifestly excessive, considering that it had already been served. Finally, the court needed to decide whether leave to appeal against the sentence should be granted, given the circumstances.
The High Court found that the sentencing judge's misapprehension about the standard non-parole period did not constitute a significant error, as it did not influence the sentence imposed. The court held that the sentence was not manifestly excessive, as the appellant had already served it. Consequently, the court determined that there was no basis for granting leave to appeal against the sentence. The appeal was dismissed, and the sentence remained unchanged.
Orders
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Background
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
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