DG v R (No 1) [2023] NSWCCA 320

DG v R (No 1) [2023] NSWCCA 320

It would have been an impermissible exercise of sentencing discretion for the judge to reduce the duration or alter the commencement of the sentence solely to enable eligibility for an intensive correction order, as such manipulation would serve an irrelevant and improper purpose. The sentencing judge appropriately backdated the sentence for time on remand, and duly considered but was not obligated to reduce the sentence further on account of non-exculpatory duress. Thus, no sentencing error was demonstrated.

Jurisdiction
Australia
Judgment Date
24 November 2023
Procedural Posture
Criminal Appeal / Appeal Against Sentence; Application for Leave to Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sentencing' 'appeal Against Sentence' 'imprisonment' 'intensive Correction Order' 'mitigating Factors' 'non Exculpatory Duress']
['criminal Law'] ['sentencing' 'appeal Against Sentence' 'imprisonment' 'intensive Correction Order' 'mitigating Factors' 'non Exculpatory Duress']

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Procedural Posture

Criminal Appeal / Appeal Against Sentence; Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to make the assessment required by s 66(2) of the Crimes (Sentencing) Procedure Act 1999 (NSW)' 'Whether reducing the sentence duration and commencement date to enable eligibility for an intensive correction order was a relevant consideration' 'Whether sufficient weight was given to uncontested evidence of non-exculpatory duress']

Ratio Decidendi

It would have been an impermissible exercise of sentencing discretion for the judge to reduce the duration or alter the commencement of the sentence solely to enable eligibility for an intensive correction order, as such manipulation would serve an irrelevant and improper purpose. The sentencing judge appropriately backdated the sentence for time on remand, and duly considered but was not obligated to reduce the sentence further on account of non-exculpatory duress. Thus, no sentencing error was demonstrated.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal against sentence.' 'Dismiss the appeal.']