Regina v Walsh [2004] NSWCCA 428

Regina v Walsh [2004] NSWCCA 428

The correct approach to account for pre-sentence custody is to backdate the relevant sentences by the amount of time spent in custody before sentencing. The sentencing judge’s failure to do so constituted an error requiring variation of the sentences’ commencement dates accordingly.

Parties
Prosecution: Regina; Applicant: Christopher Walsh
Jurisdiction
Australia
Judgment Date
25 November 2004
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Against Sentence
Outcome
Application for leave to appeal granted. Sentences imposed by Judge Orchiston are backdated and sentences imposed by the District Court are adjusted accordingly.
Legal Topics
Sentencing, Pre Sentence Custody, Appeal Against Sentence, Backdating Sentences
Criminal Law Sentencing Pre Sentence Custody Appeal Against Sentence Backdating Sentences

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Parties

Regina

Prosecution

Christopher Walsh

Applicant

Procedural Posture

Criminal Appeal / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 Whether pre-sentence custody served by the applicant was properly taken into account in sentencing
  2. 2 Whether the sentences should be backdated to reflect pre-sentence custody

Ratio Decidendi

The correct approach to account for pre-sentence custody is to backdate the relevant sentences by the amount of time spent in custody before sentencing. The sentencing judge’s failure to do so constituted an error requiring variation of the sentences’ commencement dates accordingly.

Court Disposition

Application for leave to appeal granted. Sentences imposed by Judge Orchiston are backdated and sentences imposed by the District Court are adjusted accordingly.

Orders

  • Sentences imposed by Judge Orchiston to commence four months and two days before 15 August 2003, i.e., from 13 April 2003, except one offence to commence from 13 May 2004.
  • Applicant to be released to parole from Judge Orchiston's sentences on 12 November 2004, but not eligible for release because of District Court sentences.