McMillan v R [2024] NSWCCA 83

McMillan v R [2024] NSWCCA 83

The sentencing judge erred in the approach to pre-sentence custody by not properly considering the full period solely referable to the subject offence and treating dual periods incorrectly. Given the applicant had already received credit for some dual custody in relation to unrelated offences and not all periods were referable, a fresh sentencing exercise with proper credit for pre-sentence custody solely referable to the instant offence was required. A lesser sentence was warranted having regard to mental health, progress in custody, and parity. The Court set aside the original sentence and resentenced the applicant.

Jurisdiction
Australia
Judgment Date
31 May 2024
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal allowed; sentence set aside; new sentence imposed
Legal Topics
['appeal Against Sentence' 'pre Sentence Custody Credit' 'sentencing Discretion' 'parity' 'mental Health and Sentencing']
['criminal Law'] ['appeal Against Sentence' 'pre Sentence Custody Credit' 'sentencing Discretion' 'parity' 'mental Health and Sentencing']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge failed to properly consider all pre-sentence custody' 'Whether the imposed sentence was manifestly excessive' "Whether there was an unjustified disparity between the applicant's sentence and that of his co-offender"]

Ratio Decidendi

The sentencing judge erred in the approach to pre-sentence custody by not properly considering the full period solely referable to the subject offence and treating dual periods incorrectly. Given the applicant had already received credit for some dual custody in relation to unrelated offences and not all periods were referable, a fresh sentencing exercise with proper credit for pre-sentence custody solely referable to the instant offence was required. A lesser sentence was warranted having regard to mental health, progress in custody, and parity. The Court set aside the original sentence and resentenced the applicant.

Court Disposition

Appeal allowed; sentence set aside; new sentence imposed

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Set aside the sentence imposed by Wilson SC DCJ on 9 December 2022.' 'Impose a non-parole period of 2 years 9 months and an additional term of 1 year 9 months; sentence to commence on 23 December 2021; non-parole period expires on 22 September 2024; sentence expires on...