Refojos v R [2022] NSWDC 417

Refojos v R [2022] NSWDC 417

The Local Court sentences contained legal and sentencing errors: the custodial sentence did not account for 18 days of pre-sentence custody, the intensive correction order was incorrectly ordered to commence after the custodial sentence contrary to s 71 of the Crimes (Sentence Procedure) Act 1999, and the 12-month term was excessive after allowing for the early guilty plea. The sentences were set aside and replaced with a custodial term of three months less two days dated from 5 May 2022 to expire on 2 August 2022, and a 10-month intensive correction order commencing on 2 August 2022.

Jurisdiction
Australia
Judgment Date
02 August 2022
Procedural Posture
Criminal Sentence Appeal / Appeal Against Sentences Imposed by the Downing Centre Local Court on 24 June 2022
Outcome
Sentences set aside; appeal allowed to the extent of resentencing.
Legal Topics
['driving During Period of Disqualification' 'custody of Knife in a Public Place Without Reasonable Excuse' 'pre Sentence Custody' 'intensive Correction Order' 'early Guilty Plea Discount']
['criminal Law' 'sentencing'] ['driving During Period of Disqualification' 'custody of Knife in a Public Place Without Reasonable Excuse' 'pre Sentence Custody' 'intensive Correction Order' 'early Guilty Plea Discount']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Appeal Against Sentences Imposed by the Downing Centre Local Court on 24 June 2022

Legal Issues

  1. 1 ['Whether the Local Court failed to take into account 18 days of pre-sentence custody referable to the driving offence.' 'Whether an intensive correction order could commence after the expiration of a custodial sentence rather than on the day it was made.' 'Whether the 12-month intensive correction order was excessive considering the nature of the offending and the early plea of guilty.' 'Whether the requirement to perform 100 hours of community service was onerous.']

Ratio Decidendi

The Local Court sentences contained legal and sentencing errors: the custodial sentence did not account for 18 days of pre-sentence custody, the intensive correction order was incorrectly ordered to commence after the custodial sentence contrary to s 71 of the Crimes (Sentence Procedure) Act 1999, and the 12-month term was excessive after allowing for the early guilty plea. The sentences were set aside and replaced with a custodial term of three months less two days dated from 5 May 2022 to expire on 2 August 2022, and a 10-month intensive correction order commencing on 2 August 2022.

Court Disposition

Sentences set aside; appeal allowed to the extent of resentencing.

Orders

  • ['For H87409380 Sequence 1, the Appellant is sentenced to imprisonment for 3 months less 2 days to date from 5 May 2022 and to expire on 2 August 2022.' 'For H90590116 Sequence 3, the Appellant is sentenced to imprisonment for a term of 10 months commencing on 2 August 2022 to be served by way of intensive...