Marai v R [2023] NSWCCA 224

Marai v R [2023] NSWCCA 224

The sentencing judge erred by failing to provide reasons for not taking into account the period the applicant spent in immigration detention following his release on bail, when the matter was raised as significant in submissions. On resentencing, the Court found the entire period from 9 March 2022 (when the applicant entered immigration detention after release on bail) to 6 October 2022 should be backdated in fixing the commencement date of the sentence, exercising the discretion in s 47(2) Crimes (Sentencing Procedure) Act 1999 (NSW), as the applicant's deprivation of liberty during that period was sufficiently referable to the prosecution for the Commonwealth offence.

Parties
Applicant: Freddy Marai; Respondent: Rex
Jurisdiction
Australia
Judgment Date
05 September 2023
Procedural Posture
Criminal Appeal / Leave to Appeal Sentence Granted; Appeal Allowed; Resentencing
Outcome
Leave to appeal granted; appeal allowed; sentence set aside; resentencing imposed
Legal Topics
Appeal Against Sentence, Backdating Commencement of Sentence, Immigration Detention and Sentencing, Obligation to Give Reasons
Criminal Law Appeal Against Sentence Backdating Commencement of Sentence Immigration Detention and Sentencing Obligation to Give Reasons

Case Brief

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Parties

Freddy Marai

Applicant

Rex

Respondent

Procedural Posture

Criminal Appeal / Leave to Appeal Sentence Granted; Appeal Allowed; Resentencing

Legal Issues

  1. 1 Whether the sentencing judge erred in failing to take into account the period spent in immigration detention and/or in failing to give reasons for not doing so
  2. 2 Whether pre-sentence immigration detention should be treated as custody in relation to the offence for purposes of backdating and credit against sentence
  3. 3 How much credit, if any, should be given for time in immigration detention in sentencing

Ratio Decidendi

The sentencing judge erred by failing to provide reasons for not taking into account the period the applicant spent in immigration detention following his release on bail, when the matter was raised as significant in submissions. On resentencing, the Court found the entire period from 9 March 2022 (when the applicant entered immigration detention after release on bail) to 6 October 2022 should be backdated in fixing the commencement date of the sentence, exercising the discretion in s 47(2) Crimes (Sentencing Procedure) Act 1999 (NSW), as the applicant's deprivation of liberty during that period was sufficiently referable to the prosecution for the Commonwealth offence.

Court Disposition

Leave to appeal granted; appeal allowed; sentence set aside; resentencing imposed

Orders

  • Grant leave to appeal
  • Allow the appeal