R v Jeremy Paul Price [2005] NSWCCA 285

New South Wales Court of Criminal Appeal

R v Jeremy Paul Price [2005] NSWCCA 285 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11 August 2005

JUDGMENT DATE: 15 August 2005

JUDGMENT OF: Simpson J at 1; Johnson J at 61; Rothman J at 62

DECISION: (i) application for leave to appeal granted; (ii) appeal allowed; (iii) the sentence imposed in the District Court quashed; (iv) in lieu thereof, the applicant sentenced to imprisonment with a non-parole period of nine months, commencing 27 October 2004 and expiring on 26 July 2005, with a balance of term of seven months, to expire on 26 February 2006; (v) direct that the applicant be released on parole forthwith.

CATCHWORDS: application for leave to appeal against sentence - aggravated breaking and entering a dwelling - serious indictable offence of assault occasioning actual bodily harm - circumstance of aggravation knowing that a person was present - plea of guilty - finding of special circumstances - subjective circumstances - the use of actual violence taken into account as an aggravating factor - previous discharge without conviction - prior offence treated as aggravating factor under s21A(2) - use of testimonial evidence - inadequate attention to subjective case - prospects of rehabilitation - whether material misdirection as to availability of means by which sentence might be served - basis for court to form a s6(3) opinion

Crimes Act 1900, s105A, s112( Crimes (Sentencing Procedure) Act 1999, Part 4, Division 1A, s5, s6(3), s10(1)(b), s21A, s44(2), s50, s54A(2), s54B LEGISLATION CITED: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Criminal Appeal Act 1912, s6(3)