Shavali v R [2022] NSWCCA 178

Shavali v R [2022] NSWCCA 178

Although leave was granted and ground 1 was upheld because the sentencing remarks did not demonstrate that the 438 days of pre-sentence custody had been taken into account, the majority held that the appeal should be dismissed because no other sentence was warranted in law. A full-time custodial resentence would unfairly disadvantage the applicant after establishing error, a new shorter Intensive Correction Order could not be backdated and would reimpose supervision obligations not presently applying, and a s 10A disposition was not properly available because the offences were too serious and imprisonment was the only appropriate penalty.

Jurisdiction
Australia
Judgment Date
26 August 2022
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['pre Sentence Custody' 'intensive Correction Order' 'domestic Violence Offending' 'parker Warning' 'manifest Excess' 'resentencing Discretion']
['criminal Law' 'sentencing' 'criminal Appeals'] ['pre Sentence Custody' 'intensive Correction Order' 'domestic Violence Offending' 'parker Warning' 'manifest Excess' 'resentencing Discretion']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether it was apparent that the sentencing judge took the applicant's pre-sentence custody into account when imposing the aggregate sentence." 'Whether the aggregate sentence was manifestly excessive.' 'Whether, after establishing sentencing error, some other sentence was warranted in law given the applicant had already completed supervision and community service under the existing Intensive Correction Order.' "Whether a shorter Intensive Correction Order imposed on resentencing would place a greater burden on the applicant's liberty because it could not be backdated and would require renewed supervision." 'Whether the proceedings should be disposed of without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).']

Ratio Decidendi

Although leave was granted and ground 1 was upheld because the sentencing remarks did not demonstrate that the 438 days of pre-sentence custody had been taken into account, the majority held that the appeal should be dismissed because no other sentence was warranted in law. A full-time custodial resentence would unfairly disadvantage the applicant after establishing error, a new shorter Intensive Correction Order could not be backdated and would reimpose supervision obligations not presently applying, and a s 10A disposition was not properly available because the offences were too serious and imprisonment was the only appropriate penalty.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to the applicant to appeal.' 'Dismiss the appeal.']