REGINA v. DUNCAN [2002] NSWCCA 164

REGINA v. DUNCAN [2002] NSWCCA 164

The sentencing judge did not err in imposing the same head sentence on the applicant and the co-offender, nor was the sentence manifestly excessive; however, the judge erred by failing to backdate the sentence to 24 July 2001, when the applicant entered custody solely referable to the offence. The expectation that...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 May 2002
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence quashed and substituted with a backdated sentence.
Legal Topics
['break, Enter and Steal in Circumstances of Aggravation' 'parity' 'pre Trial Custody' 'backdating Sentence' 'offending While on Bail']
['criminal Law' 'sentencing'] ['break, Enter and Steal in Circumstances of Aggravation' 'parity' 'pre Trial Custody' 'backdating Sentence' 'offending While on Bail']

Source-derived case record

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in applying parity principles by not distinguishing between the applicant and the co-offender despite their age difference.' "Whether the sentencing judge failed to give adequate weight to the applicant's youth." 'Whether the sentencing judge erred by failing to backdate the sentence to the date the applicant entered custody.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in imposing the same head sentence on the applicant and the co-offender, nor was the sentence manifestly excessive; however, the judge erred by failing to backdate the sentence to 24 July 2001, when the applicant entered custody solely referable to the offence. The expectation that the Children's Court might later impose a sanction did not justify depriving the applicant of credit for pre-sentence custody.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed and substituted with a backdated sentence.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The sentence imposed below is quashed.' 'In lieu thereof, a sentence of imprisonment for three years and four months commencing on 24 July 2001 and expiring on 23 November 2004 is substituted.' 'A non-parole period is to date from 24 July 2001 and expire on 23 January...