Nweke v R (No 2) [2020] NSWCCA 227

Nweke v R (No 2) [2020] NSWCCA 227

Federal parole was automatically revoked under s 19AQ(1) upon imposition of the new sentence. The applicant was entitled to credit for time spent at liberty on parole ('clean street time'). By operation of s 19AS(1)(d), the unserved portion of the previous sentence commenced at the date of the new sentence and was fully served before the present judgment. The appropriate course is to resentence the applicant for the new offence alone, commencing the sentence with notional accumulation to recognize the previous sentence, but not to issue further orders on the now-completed prior sentence.

Parties
Applicant: Dirichukwu Patrick Nweke; Respondent: Regina
Jurisdiction
Australia
Judgment Date
09 September 2020
Procedural Posture
Criminal Appeal / Re Sentencing Following Successful Sentence Appeal; Conviction Appeal Previously Dismissed
Outcome
Sentence appeal allowed; previous sentences quashed; new sentence imposed for new offence only.
Legal Topics
Sentencing, Parole Revocation, Federal Sentencing Provisions
Criminal Law Sentencing Parole Revocation Federal Sentencing Provisions

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Parties

Dirichukwu Patrick Nweke

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Re Sentencing Following Successful Sentence Appeal; Conviction Appeal Previously Dismissed

Legal Issues

  1. 1 How should federal parole revocation provisions under Crimes Act 1914 (Cth) interact with sentencing for new offences?
  2. 2 Is an offender entitled to credit for 'street time' under s 19AA(2) when sentenced in New South Wales?
  3. 3 How can sentencing structure accommodate the statutory framework where the offender is on parole and then sentenced for a subsequent federal offence?

Ratio Decidendi

Federal parole was automatically revoked under s 19AQ(1) upon imposition of the new sentence. The applicant was entitled to credit for time spent at liberty on parole ('clean street time'). By operation of s 19AS(1)(d), the unserved portion of the previous sentence commenced at the date of the new sentence and was fully served before the present judgment. The appropriate course is to resentence the applicant for the new offence alone, commencing the sentence with notional accumulation to recognize the previous sentence, but not to issue further orders on the now-completed prior sentence.

Court Disposition

Sentence appeal allowed; previous sentences quashed; new sentence imposed for new offence only.

Orders

  • Sentences imposed on 22 March 2019 quashed.
  • For conspiring to import a commercial quantity of cocaine between 27 March 2014 and 30 April 2014, sentence of 13 years and 3 months' imprisonment commencing 30 October 2014 and expiring 29 January 2028 imposed.