R v Brookes (No. 2) [2020] NSWDC 504

R v Brookes (No. 2) [2020] NSWDC 504

The original commencement date of 18 August 2018 was contrary to law because the offender had been in custody in relation to the subject offence only since 18 December 2018, so the proceedings were reopened and the prior sentencing orders withdrawn. Because the offender's parole was revoked as a result of the subject offence, the court had discretion to backdate the sentence to 18 December 2018. In the circumstances, including the relationship between the revoked parole and the subject offence and the need to avoid double counting the aggravating feature of offending while on parole, the sentence was ordered to commence on 18 December 2018.

Jurisdiction
Australia
Judgment Date
03 September 2020
Procedural Posture
Criminal Sentencing / Sentence Correction Under S 43 of the Crimes (sentencing Procedure) Act 1999
Outcome
Sentence corrected; orders 1 and 2 of 14 August 2020 withdrawn; imprisonment imposed with a non-parole period of 2 years and 5 months and a total sentence of 3 years and 9 months commencing on 18 December 2018.
Legal Topics
['correction of Sentence' 'backdating Sentence' 'parole Revocation' 'non Parole Period']
['criminal Law' 'sentencing'] ['correction of Sentence' 'backdating Sentence' 'parole Revocation' 'non Parole Period']

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Procedural Posture

Criminal Sentencing / Sentence Correction Under S 43 of the Crimes (sentencing Procedure) Act 1999

Legal Issues

  1. 1 ['Whether the sentence imposed on 14 August 2020 contained an error in the commencement date.' 'Whether the court should reopen the proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999.' 'Whether the corrected sentence should commence on 18 December 2018 or on a later date having regard to the revoked parole period.' 'Whether the statutory ratio between the head sentence and the non-parole period should be varied.']

Ratio Decidendi

The original commencement date of 18 August 2018 was contrary to law because the offender had been in custody in relation to the subject offence only since 18 December 2018, so the proceedings were reopened and the prior sentencing orders withdrawn. Because the offender's parole was revoked as a result of the subject offence, the court had discretion to backdate the sentence to 18 December 2018. In the circumstances, including the relationship between the revoked parole and the subject offence and the need to avoid double counting the aggravating feature of offending while on parole, the sentence was ordered to commence on 18 December 2018.

Court Disposition

Sentence corrected; orders 1 and 2 of 14 August 2020 withdrawn; imprisonment imposed with a non-parole period of 2 years and 5 months and a total sentence of 3 years and 9 months commencing on 18 December 2018.

Orders

  • ['Orders 1 and 2 of 14 August 2020 are withdrawn.' 'Imprisonment consisting of a non-parole period of 2 years and 5 months commencing on 18 December 2018 and expiring on 17 May 2021.' 'Total sentence of 3 years and 9 months commencing on 18 December 2018 and expiring on 17 September 2022.']