New Orders:1. That the time for filing the Notice Seeking Leave to Appeal be extended.2. That leave to appeal be granted.3. That the appeal be allowed and that the sentence imposed on 3 May 2003 be quashed.4. That in lieu of the sentence in respect of Count 1, and taking into account the matters on the Form 1, the applicant be sentenced to a term of imprisonment of 4 years 6 months commencing on 15 August 2002 and expiring on 14 February 2007, with a non parole period of 2 years 6 months commencing on 15 August 2002 and expiring on 14 February 2005, at which time the applicant will be eligible for release on parole.5. In respect of Count 2, the applicant be sentenced to a fixed term of imprisonment of 2 years 6 months commencing on 15 August 2002 and expiring on 14 February 2005.
Conviction and sentence appeal:Application to go behind plea of guilty - whether sentence excessive.Application for extension of time granted; appeal dismissed
Crown appeal:Whether sentence manifestly inadequate.Appeal allowed. New sentence imposed: 4y with NPP of 2*y.
1st indictment: 1 x armed robbery in company; + offence taken into account (armed robbery in company).Each offence involved the placing of a knife against the side of a train passenger & the demanding of a mobile phone & wallet. The driver's licence of each victim was inspected & one victim was told that his address was an easy one to remember.4y 7m with NPP of 2y 7m (to date from 11.10.2003).
2nd indictment: 2 x armed robbery; 2 x assault with intent to rob whilst armed with offensive weapon.Applicant approached 3 people in a car-park. He produced a knife & grabbed one of the victims, pointed the knife at his stomach, threatened to stab him & demanded the victims' phones, watches & money. Again he looked at the licences of all 3 victims, stating 'don't do anything, I'll get youse because I know where you live now'. The assault offence occurred on the same day when applicant & a co-offender approached another victim & a person sitting in a car-park. Applicant produced a knife, placed it against the victim's ribs & said 'just give me your phone or I'll stab you'The victim managed to push the applicant's hand away before fleeing.5*y with NPP of 3*y (to date from 11.10.2003).
Aged 20 & on parole at time of offences - multiple priors starting at age 16 - previous imprisonment.Aggravating & mitigating features - revocation of parole - double punishment - whether sentences excessive.Appeal dismissed.
Appellant acted as driver for heroin dealer - appellant pleaded guilty & asked that 4 other offences be taken into account by sentencing judge - whether CCA adopted impermissible approach to sentencing by means of staged approach - whether staged approach to be preferred to instinctive synthesis of sentencer - relevance of maximum available sentence - relevance of quantity of drug.
Prosecution appeal against sentence - CCA increased sentence from 2*y to 8y - whether CCA was wrong to find that the original sentence was manifestly inadequate - whether re-sentencing discretion miscarried.
Re-sentencing - further offences - additional discrete sentence added to head sentence for further offences disclosed by offender - whether such approach a breach of totality principle.
Principles - failure by trial judge & CCA to consider an obligatory requirement of sentencing statute in determining appellant's sentence - whether sentencing discretion of trial judge & CCA miscarried because of such omission.
By making a proportional deduction the CCA erroneously used the maximum penalty - no universal rule that "instinctive synthesis" is the sentencing method the courts should adopt - sentencing principle does not dictate any particular path of reasoning - "The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached." (at para 27) - the CCA should not have indulged in an arithmetical process in this case because of the number & complexity of the considerations that had to be weighed by the trial judge.
Appeal allowed: matter remitted to the CCA.
Sentence amended:-VL - CCA, 21.11.2005Grove, Hulme & Simpson JJCitation: R v VL (AMEND)  NSWCCA 389Amendment to above sentence.Correct sentence: 5y 4m with a NPP of 3*y.
Held:(1) The applicant was not affected by the amendments which would have required him to wait 20 years before making an application, because his application was pending immediately before the day on which the 1997 Amending Act was introduced into Parliament.(2) The words of the sentencing judge clearly constitute a non-release recommendation within the meaning of the legislation.(3) The applicant did not have to wait 30 years before making the application (he had already made it) and he did not have to satisfy the Court that "special reasons" existed which justified the making of the application.(4) The applicant's application had been "duly made" notwithstanding the amending legislation.(5) The amendments to the sentencing legislation were not invalid by reason of inconsistency with Ch III of the
Constitution.Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51;
Baker v The Queen (2004) 78 ALJR 1483, referred to.
'73 Before I conclude these reasons there are three further matters to which I would refer. Firstly, as has been said before but, as this case demonstrates, needs to be said again, judges who fail to pass sentences properly reflecting the seriousness of offences as laid down by Parliament and the principles of sentencing as dictated both by that body and established by superior Courts do no favour to those such as the Respondent who must now have his life and rehabilitation interrupted yet again and be returned to custody.
74 Secondly, this case is yet another of those all too frequent cases where, in order to impose a proper sentence on the Respondent, this Court has had to choose between the unfairness of unequal treatment of co-offenders and the injustice to the community of acquiescing in a second manifestly inadequate sentence because the Director of Public Prosecutions, while appealing in the case of the Respondent elected, or was not sufficiently organised, to appeal in the case of a co-offender. As the Respondent and Sayadi were both arrested on the same day and sentenced by the same judge some 2 weeks apart it is inconceivable that the Office of the Director of Public Prosecutions was not aware of the relationship between them. In that situation it is impossible to see any rational explanation for the bringing of an appeal in one case and not in the other.
75 Thirdly, I wish to make it clear that the sentence I have proposed is one entered in the exercise of this Court's discretion, reflects a number of matters which should not have been allowed to occur and is appreciably less than should have been imposed at first instance'.
The Court answered the questions asked in the case stated as follows:
Q2: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the
Evidence Act 1995, did I err in failing to have regard to a critical factor, namely, absolute liability nature of the offence?A: Inappropriate to answer.
Q3: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the
Evidence Act 1995, did I err in failing to take into account the essential respects in which the prosecutor's conduct and the legislative context of this conduct differed from the conduct and legislative context in
Ridgeway v The Queen (1994) 184 CLR 19?A: Inappropriate to answer.