Musgrove v R [2007] NSWCCA 21

Reported Decision: 167 A Crim R 424

New South Wales Court of Criminal Appeal

CITATION: Musgrove v R [2007] NSWCCA 21 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 February 2007

JUDGMENT DATE: 12 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Price J at 55

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: CRIMINAL LAW - sentencing - standard non-parole period - application to appeal against severity of sentence - aggravated sexual assault - plea of guilty - prior criminal record - current bond to be of good behaviour - discount for plea of guilty - special circumstances not found - whether error in failing to find special circumstances - determination of special circumstances discretionary - whether error in failing to impose parole period in statutory proportion to the head sentence - no requirement to give reasons for sentence in which the balance of term is less than one third of the non-parole period - changes in sentencing legislation - course of legislative amendment - court required first to set non-parole period and secondly to set a balance of term - grant of parole not automatic - no statutory requirement that non-parole period first be determined - whether sentence imposed manifestly excessive - sentence within range legitimately available

Crimes Act 1900 s61J Crimes Legislation Amendment (Sentencing) Act 1999, s44, s45 Crimes (Sentencing Procedure) Act 1999 Division 1A, Part 4 s9, s44, s45, s54A, s54B LEGISLATION CITED: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) 2002 No 90 Probation and Parole Act 1983, s19, s20A, s21 Probations and Parole (Serious Offences) Amendment Act 1987 Sentencing Act 1989, s5