Tompkins v R [2019] NSWCCA 37

Tompkins v R [2019] NSWCCA 37

Ground 1 was not made out because the sentencing judge was aware of the parole balance and implicitly considered totality, including the earlier offence, when deciding on substantial partial accumulation and special circumstances. Ground 2 was made out because the sentencing judge failed to take into account the significant delay in sentencing, not attributable to the applicant, as a factor relevant to the commencement date; that failure caused the sentencing discretion to miscarry. The Court therefore re-exercised the sentencing discretion and backdated the aggregate sentence to 21 May 2017.

Jurisdiction
Australia
Judgment Date
27 February 2019
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court of NSW on 21 November 2017
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant re-sentenced to an aggregate sentence backdated to 21 May 2017.
Legal Topics
['sentence Appeal' 'armed Robbery' 'attempt Aggravated Taking of Motor Vehicle' 'revocation of Parole' 'totality Principle' 'delay in Sentencing' 'commencement Date of Sentence' 'backdating Sentence']
['criminal Law' 'sentencing'] ['sentence Appeal' 'armed Robbery' 'attempt Aggravated Taking of Motor Vehicle' 'revocation of Parole' 'totality Principle' 'delay in Sentencing' 'commencement Date of Sentence' 'backdating Sentence']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court of NSW on 21 November 2017

Legal Issues

  1. 1 ['Whether the sentencing judge erred in his approach to the principle of totality when the applicant was already serving the balance of parole for an earlier sentence.' 'Whether the sentencing judge erred in determining the commencement date of the aggregate sentence by failing to take into account delay in the sentence proceedings that was not attributable to the applicant.' 'Whether the Court should re-exercise the sentencing discretion and backdate the commencement date of the sentence.']

Ratio Decidendi

Ground 1 was not made out because the sentencing judge was aware of the parole balance and implicitly considered totality, including the earlier offence, when deciding on substantial partial accumulation and special circumstances. Ground 2 was made out because the sentencing judge failed to take into account the significant delay in sentencing, not attributable to the applicant, as a factor relevant to the commencement date; that failure caused the sentencing discretion to miscarry. The Court therefore re-exercised the sentencing discretion and backdated the aggregate sentence to 21 May 2017.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant re-sentenced to an aggregate sentence backdated to 21 May 2017.

Orders

  • ['Leave to appeal granted.' 'The appeal is allowed.' 'The sentence imposed on the applicant in the District Court on 21 November 2017 is quashed.' 'In lieu thereof, the applicant is sentenced to an aggregate sentence with a non-parole period of 5 years, commencing 21 May 2017 and expiring 20 May 2022, with a balance...