R v Misiepo [2005] NSWCCA 405

New South Wales Court of Criminal Appeal

CITATION: R v Misiepo [2005] NSWCCA 405

HEARING DATE(S): 18 November 2005

JUDGMENT DATE: 24 November 2005

JUDGMENT OF: Simpson J at 1; Adams J at 56; Hoeben J at 57

DECISION: Crown appeal dismissed.

CATCHWORDS: Crown appeal - plea of guilty - use of firearm - two offenders in car - victim shot - uncertainty as to which offender fired gun - co-offender's plea of guilty to robbery in company - judge declined to find that gun was used by or with knowledge of respondent - whether finding open after plea of guilty - joint criminal enterprise - whether knowledge of presence of gun implied in plea of guilty - timing of plea - application to withdraw plea - finding that plea entered at earliest possible opportunity - whether finding open - contrition - statutory requirement firstly to set non-parole period and then specify balance of term - whether necessary to determine non-parole period before total term - standard non-parole period - departure from standard non-parole period justified but not explained - Henry guideline for sentencing for armed robbery - offence and offender not within Henry profile - circumstances suggest more severe sentence than Henry guideline - sentence within Henry guideline - subjective circumstances - finding of special circumstances - rehabilitation - principles applicable to Crown appeals - Court's residual discretion in Crown appeals - appeal dismissed in exercise of discretion

Crimes Act 1900 s97, s98 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Part 3 Division 1A, s44, s54B

Everett v The Queen [1994] HCA 49; 181 CLR 295 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Wall [2002] NSWCCA 42 R v Way [2004] NSWCCA 131; 60 NSWLR 168