Allan v R (No 2) [2011] NSWCCA 27

Allan v R (No 2) [2011] NSWCCA 27

The power under s 59(1) of the Crimes (Sentencing Procedure) Act 1999 to vary commencement dates of sentences is not confined to cases where sentences are to commence in the future or consecutive only; variation can be made where necessary to give effect to the reduction of a prior sentence, provided it is appropriate in the circumstances.

Parties
Applicant: Bernard Allan; Respondent: Regina
Jurisdiction
Australia
Judgment Date
02 March 2011
Procedural Posture
Criminal Appeal / Sentence Variation/appeal Decision
Outcome
Application allowed; commencement dates of second sentences varied as specified.
Legal Topics
Sentencing, Application of S 59 Crimes (sentencing Procedure) Act 1999, Variation of Sentence Commencement Dates
Criminal Law Sentencing Application of S 59 Crimes (sentencing Procedure) Act 1999 Variation of Sentence Commencement Dates

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Bernard Allan

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Sentence Variation/appeal Decision

Legal Issues

  1. 1 Whether s 59 of the Crimes (Sentencing Procedure) Act 1999 empowers the Court to vary the commencement dates of sentences where there is no hiatus period between sentences.
  2. 2 Proper interpretation and application of s 59 regarding the varying of sentence commencement dates.

Ratio Decidendi

The power under s 59(1) of the Crimes (Sentencing Procedure) Act 1999 to vary commencement dates of sentences is not confined to cases where sentences are to commence in the future or consecutive only; variation can be made where necessary to give effect to the reduction of a prior sentence, provided it is appropriate in the circumstances.

Court Disposition

Application allowed; commencement dates of second sentences varied as specified.

Orders

  • Break, enter and steal: 3 years imprisonment consisting of a non-parole period of 2 years commencing 2 January 2010 and expiring 1 January 2012 with a balance of term of 1 year expiring on 1 January 2013.
  • Assault occasioning actual bodily harm: imprisonment for a fixed term of 12 months commencing 2 January 2010 and expiring on 1 January 2011.