Ruttley v R [2010] NSWCCA 118

New South Wales Court of Criminal Appeal

CITATION: Ruttley v R [2010] NSWCCA 118 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 May 2010

JUDGMENT DATE: 4 June 2010

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Fullerton J at 61

(i) Leave to appeal granted; (ii) Appeal allowed, sentences quashed; DECISION: (iii) In lieu thereof, the applicant be sentenced as follows: On count 1: to imprisonment for 3 years, commencing on 14 January 2009, with a non-parole period of 16 months, expiring on 13 May 2010, and a balance of term of 20 months expiring on 13 January 2012; On count 2: a fixed term of imprisonment of 16 months commencing on 14 January 2009, and expiring on 13 May 2010. (iv) Accordingly, in accordance with s 50 of the Sentencing Procedure Act, direct that the applicant be released forthwith.

CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – enter dwelling with intent to commit a serious indictable offence in circumstances of aggravation – assault occasioning actual bodily harm - CRIMINAL LAW – appeal against severity of sentence – voluntary disclosure of offence – amelioration of effect of offence – remorse – prospects of rehabilitation – failure to set non-parole period – fixed term representing non-parole period – parity with co-offender dealt with in juvenile jurisdiction – proportionality – less severe sentence warranted in law – appeal allowed, sentences quashed, applicant re-sentenced and released forthwith

Children (Criminal Proceedings) Act 1987 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912