Little v R [2018] NSWCCA 63

Little v R [2018] NSWCCA 63

The later quashing of the applicant's driving convictions and Local Court sentence was a change of circumstances sufficiently analogous to circumstances existing at sentence but not fully known or understood, so the Court could intervene. Because the original sentence had been fixed by an intuitive synthesis that included totality considerations referable to the Local Court sentence, it was not appropriate simply to backdate the sentence by four months to 13 July 2015. Re-exercising the sentencing discretion, and having regard to the seriousness of the s 86(2) offence, the Bugmy considerations, the applicant's criminal history and rehabilitation issues, and the need to account for custody...

Jurisdiction
Australia
Judgment Date
16 April 2018
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Sentence appeal allowed; sentence quashed and applicant re-sentenced.
Legal Topics
['sentence Appeal' 'take/detain Person in Company With Intent to Obtain Advantage' 'backdating Sentence' 'pre Trial Custody' 'totality' 'fresh or Additional Evidence on Sentence Appeal' 're Sentencing']
['criminal Law' 'sentencing'] ['sentence Appeal' 'take/detain Person in Company With Intent to Obtain Advantage' 'backdating Sentence' 'pre Trial Custody' 'totality' 'fresh or Additional Evidence on Sentence Appeal' 're Sentencing']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the setting aside of the applicant's Local Court conviction and sentence for driving offences, after the sentence under appeal had been made partially concurrent with that sentence, gave rise to a miscarriage of justice requiring intervention." 'Whether the sentence for the take/detain offence should have been backdated to 13 July 2015 when bail was refused, or otherwise adjusted to take account of custody and totality.' 'Whether the Court could have regard to the post-sentence change in circumstances constituted by the successful appeal against the driving offences.' 'Whether, after identifying error, the Court was required to re-exercise the sentencing discretion rather than make a merely arithmetical alteration.']

Ratio Decidendi

The later quashing of the applicant's driving convictions and Local Court sentence was a change of circumstances sufficiently analogous to circumstances existing at sentence but not fully known or understood, so the Court could intervene. Because the original sentence had been fixed by an intuitive synthesis that included totality considerations referable to the Local Court sentence, it was not appropriate simply to backdate the sentence by four months to 13 July 2015. Re-exercising the sentencing discretion, and having regard to the seriousness of the s 86(2) offence, the Bugmy considerations, the applicant's criminal history and rehabilitation issues, and the need to account for custody...

Court Disposition

Sentence appeal allowed; sentence quashed and applicant re-sentenced.

Orders

  • ['The sentence imposed by Frearson SC DCJ on 23 June 2016 is quashed.' 'In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 5 years, commencing 13 September 2015 and expiring 12 September 2020, with a balance of term of 2½ years expiring on 12 March 2023.' 'The applicant will be...