Hamilton v R [2016] NSWCCA 59

Hamilton v R [2016] NSWCCA 59

Error was established in not taking account of pre-trial custody related to the offence. Since the s 95 charge was later no billed and the applicant remained bail refused only in connection with the s 112(2) offence, justice required the sentence to be backdated to the date of bail refusal for the relevant offence. The applicant was resentenced accordingly.

Jurisdiction
Australia
Judgment Date
20 April 2016
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal upheld; applicant resentenced
Legal Topics
['appeal Against Sentence' 'pre Trial Custody' 'sentencing Discretion' 'miscarriage of Justice']
['criminal Law'] ['appeal Against Sentence' 'pre Trial Custody' 'sentencing Discretion' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 ["Whether sentencing judge erred in not backdating or otherwise taking into account applicant's pre-trial custody" 'Whether sentence imposed in respect of the s 112(2) offence resulted in miscarriage of justice']

Ratio Decidendi

Error was established in not taking account of pre-trial custody related to the offence. Since the s 95 charge was later no billed and the applicant remained bail refused only in connection with the s 112(2) offence, justice required the sentence to be backdated to the date of bail refusal for the relevant offence. The applicant was resentenced accordingly.

Court Disposition

Appeal upheld; applicant resentenced

Orders

  • ['Leave to appeal granted' 'Appeal upheld' 'Sentence quashed' 'Appellant resentenced to 34 months imprisonment commencing on 21 October 2014, with non-parole period of 18 months expiring on 20 April 2016 and balance of term expiring on 20 August 2017' 'Applicant released on parole at expiry of non-parole period on...