Browne v R [2023] NSWCCA 218

Browne v R [2023] NSWCCA 218

The sentencing judge erred by ordering the applicant's sentence to commence on 22 June 2022. Because the applicant's non-parole period for the earlier sentence had expired on 9 October 2020 and, after revocation of parole, he remained in custody under that sentence when sentenced on 21 April 2022, s 47(5) prohibited a direction under s 47(2)(b) post-dating commencement beyond the date sentence was imposed. This Kentwell error required re-sentencing. Taking into account the delay, the applicant's readiness for sentence, the need for appropriate accumulation, parity considerations, the Form 1 offences, his deprived background and the need for specific deterrence, the appropriate sentence...

Jurisdiction
Australia
Judgment Date
05 September 2023
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal
Outcome
Leave to appeal against sentence granted; appeal allowed; sentence quashed; applicant re-sentenced.
Legal Topics
['sentence Appeal' 'commencement Date of Sentence' 'revocation of Parole' 'parity' 'form 1 Offences' 'driving While Disqualified']
['criminal Law' 'sentencing'] ['sentence Appeal' 'commencement Date of Sentence' 'revocation of Parole' 'parity' 'form 1 Offences' 'driving While Disqualified']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant had a justifiable sense of grievance when comparing his sentence to that imposed on the co-offender, Kayne Hall.' "Whether the sentencing judge erred in ordering the applicant's sentence to commence on 22 June 2022." 'Whether s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibited a direction that the sentence commence after the date it was imposed because the applicant was still in custody under another sentence after expiry of its non-parole period.' 'What sentence should be imposed on re-sentence, including the appropriate commencement date and the effect of parity, parole revocation, subjective circumstances and specific deterrence.']

Ratio Decidendi

The sentencing judge erred by ordering the applicant's sentence to commence on 22 June 2022. Because the applicant's non-parole period for the earlier sentence had expired on 9 October 2020 and, after revocation of parole, he remained in custody under that sentence when sentenced on 21 April 2022, s 47(5) prohibited a direction under s 47(2)(b) post-dating commencement beyond the date sentence was imposed. This Kentwell error required re-sentencing. Taking into account the delay, the applicant's readiness for sentence, the need for appropriate accumulation, parity considerations, the Form 1 offences, his deprived background and the need for specific deterrence, the appropriate sentence...

Court Disposition

Leave to appeal against sentence granted; appeal allowed; sentence quashed; applicant re-sentenced.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal allowed.' 'The sentence imposed by Craigie SC DCJ on 21 April 2022 is quashed.' 'For the offence in contravention of s 112(2) of the Crimes Act, taking into account the offences on the Form 1, a period of imprisonment for 3 years commencing on 14 February 2022 and...