R v Dole; R v Nguyen [2010] NSWCCA 101

New South Wales Court of Criminal Appeal

CITATION: R v Dole; R v Nguyen [2010] NSWCCA 101

HEARING DATE(S): 2 February 2010

JUDGMENT DATE: 13 May 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 14

1. Appeal allowed. DECISION: 2. Sentences imposed in the District Court quashed. 3. Each of the respondents is sentenced to a term of imprisonment made up of a non-parole period of 2 years and a balance of term of 1 year and 4 months. The sentences should date from 21 July 2009 and the non-parole period expire on 20 July 2011 the date upon which the respondents are eligible to be considered for release to parole.

CATCHWORDS: CRIMINAL LAW – Crown appeal – specially aggravated break and enter and commit serious indictable offence – whether sentencing judge failed to give sufficient weight to the objective criminality of the offences or gave disproportionate weight to the respondents' subjective circumstances – whether sentencing judge erroneously double counted factors when determining degree of departure from the standard non-parole period - whether degree of departure from the standard non-parole period so great as to manifest error - sentences manifestly inadequate – appeals allowed.

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Appeal and Review) Act 2001 Criminal (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187 Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mulato v Regina [2006] NSWCCA 282 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 CASES CITED : R v Fidow [2004] NSWCCA 172 R v JW [2010] NSWCCA 49 R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 SKA v R; R v SKA [2009] NSWCCA 186 Woodgate v R [2009] NSWCCA 137