DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v RHB [2008] NSWCCA 236

Reported Decision: 189 A Crim R 178

New South Wales Court of Criminal Appeal

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v RHB [2008] NSWCCA 236 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29 August 2008

JUDGMENT DATE: 14 October 2008

JUDGMENT OF: Basten JA at 1; Hislop J at 55; Price J at 56

(1) Dismiss the appeal by the Director of Public Prosecutions against the sentence imposed by Hall J on 17 December 2007 in respect of his conviction for murder.

DECISION: (2) Grant the respondent leave to appeal against the sentence imposed on him in respect of his conviction for murder, quash the sentence and re-sentence the respondent as follows:

(i) set a non-parole period of 20 years to commence on the expiration of the non-parole period of four years six months imposed for the offence of manslaughter, on 6 November 2009 and expiring on 5 November 2029; (ii) set a balance of term of six years eight months to commence on 6 November 2029 and expiring on 5 July 2036.

CATCHWORDS: SENTENCING – error in sentencing – not corrected by trial judge –inconsistencies in reasons for sentencing – how court of criminal appeal should address error – whether setting lesser sentence warranted in law – Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 – Criminal Appeal Act 1912 (NSW), s 6(3) - SENTENCING – relationship killings – setting of sentence for murder of young child – calculation of non-parole period and balance of sentence on parole – whether special circumstances justify higher balance of sentence – questions of accumulation – questions of totality – whether sentence proportionate to overall criminality – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 - SENTENCING – standard non-parole period – when court should set standard non-parole period – whether offence in middle of range of objective seriousness – whether aggravating or mitigating factors – table of "standard non-parole periods" – whether conditions of imprisonment should be considered – relationship killings – murder of young child – comparison with life imprisonment – Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54, 54A, 54B, Part 4, Div 1A - WORDS & PHRASES – "middle of the range of objective seriousness" – "objective seriousness of the offence" – "standard non-parole period"