Huynh v R [2024] NSWCCA 61

Huynh v R [2024] NSWCCA 61

The majority held that the appeal should be allowed because the sentencing judge failed to backdate the sentence by the further 14 days between the sentence hearing and delivery of judgment, and also erred in selecting a backdating period of 330 days without explaining on a principled basis how that period related to the applicant's pre-sentence custody for the other offences. In the absence of a basis to conclude that the 24 days spent in custody for the H83833822 offences had already been taken into account, and given the applicant's concession concerning the 38 days for the H85215060 offences, the commencement date was to take into account 387 days of pre-sentence custody less 38 days,...

Jurisdiction
Australia
Judgment Date
06 May 2024
Procedural Posture
Sentence Appeal; Application for Leave to Appeal Against Aggregate Sentence / Court of Criminal Appeal Hearing of Application for Leave to Appeal and Appeal Against Sentence Imposed by the District Court
Outcome
Leave to appeal granted; appeal allowed; aggregate sentence set aside and replaced with a sentence having an earlier commencement date.
Legal Topics
['backdating Sentence Commencement Date' 'pre Sentence Custody' 'aggregate Sentence' 'non Parole Period' 'arithmetical Error in Sentence Calculation' 'community Correction Orders']
['criminal Law' 'sentencing' 'criminal Appeals'] ['backdating Sentence Commencement Date' 'pre Sentence Custody' 'aggregate Sentence' 'non Parole Period' 'arithmetical Error in Sentence Calculation' 'community Correction Orders']

Case Brief

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Procedural Posture

Sentence Appeal; Application for Leave to Appeal Against Aggregate Sentence / Court of Criminal Appeal Hearing of Application for Leave to Appeal and Appeal Against Sentence Imposed by the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge made an arithmetical error by failing to allow for the further 14 days in custody between the sentence hearing and the sentencing judgment.' "Whether the sentencing judge failed to take into account all of the applicant's pre-sentence custody in accordance with ss 24 and 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW)." 'Whether the discretion to backdate the commencement date of a sentence under s 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) miscarried where the sentencing judge selected 330 days without explaining the basis for that allowance.']

Ratio Decidendi

The majority held that the appeal should be allowed because the sentencing judge failed to backdate the sentence by the further 14 days between the sentence hearing and delivery of judgment, and also erred in selecting a backdating period of 330 days without explaining on a principled basis how that period related to the applicant's pre-sentence custody for the other offences. In the absence of a basis to conclude that the 24 days spent in custody for the H83833822 offences had already been taken into account, and given the applicant's concession concerning the 38 days for the H85215060 offences, the commencement date was to take into account 387 days of pre-sentence custody less 38 days,...

Court Disposition

Leave to appeal granted; appeal allowed; aggregate sentence set aside and replaced with a sentence having an earlier commencement date.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' "Set aside the aggregate sentence imposed by Fitzsimmons SC DCJ on 10 February 2023 and, in lieu thereof, impose a sentence of 4 years' imprisonment, commencing on 26 February 2022 and expiring on 26 February 2026, with a non-parole period of 3 years, commencing on 26...