Byrne v R [2015] NSWCCA 159

Byrne v R [2015] NSWCCA 159

The sentencing judge was made aware of the applicant's 4 month period of pre-sentence custody but made no reference to it in brief sentencing remarks and commenced the 9 month sentences on the date sentence was imposed. Because nothing clearly stated that the pre-sentence custody had been taken into account, and it appeared the matter had been overlooked, the sentence had to be reduced and backdated to reflect time already served.

Jurisdiction
Australia
Judgment Date
24 June 2015
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal From Sentence Imposed in the District Court
Outcome
Leave granted, appeal allowed, District Court sentence quashed, and applicant re-sentenced to time served.
Legal Topics
['supply of Prohibited Drugs' 'form 1 Offences' 'pre Sentence Custody' 'intensive Correction Order' 'sentence Appeal']
['criminal Law' 'sentencing'] ['supply of Prohibited Drugs' 'form 1 Offences' 'pre Sentence Custody' 'intensive Correction Order' 'sentence Appeal']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the sentencing judge failed to take into account the applicant's 4 month period of pre-sentence custody when directing the sentence to commence on the date it was imposed." 'Whether the sentence should be reduced and backdated so that the applicant did not have to return to custody.' "Whether the sentencing judge failed to consider an intensive correction order and whether there was disparity between the applicant's sentence and Ms Grice's sentence."]

Ratio Decidendi

The sentencing judge was made aware of the applicant's 4 month period of pre-sentence custody but made no reference to it in brief sentencing remarks and commenced the 9 month sentences on the date sentence was imposed. Because nothing clearly stated that the pre-sentence custody had been taken into account, and it appeared the matter had been overlooked, the sentence had to be reduced and backdated to reflect time already served.

Court Disposition

Leave granted, appeal allowed, District Court sentence quashed, and applicant re-sentenced to time served.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentence passed in the District Court quashed.' 'Taking into account the matters on the Form 1, the applicant was re-sentenced on each count to imprisonment for a fixed term of 7 months, commencing on 25 October 2014 and expiring on 24 May 2015.']