Green (a pseudonym) v R [2018] NSWCCA 146

Green (a pseudonym) v R [2018] NSWCCA 146

The sentencing judge erred by treating backdating to the date of charge, and a finding of special circumstances, as adequate to address totality. The date of the New South Wales charge did not answer the question required by Mill, namely what effective sentence would likely have been imposed had the New South Wales and Victorian offences been sentenced together. Because the resulting accumulation produced an excessive effective non-parole period without adequate reasoning, the Court resentenced the applicant by maintaining a 7-year sentence but commencing it earlier so that part of the Victorian and New South Wales non-parole periods operated concurrently.

Jurisdiction
Australia
Judgment Date
20 July 2018
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal granted; District Court sentence quashed; applicant resentenced to a non-parole period of 4 years and 3 months and a remainder of term of 2 years and 9 months.
Legal Topics
['principle of Totality' 'backdating of Sentence' 'special Circumstances' 'non Parole Period' 'interstate Sentences' 'armed Robbery']
['criminal Law' 'sentencing'] ['principle of Totality' 'backdating of Sentence' 'special Circumstances' 'non Parole Period' 'interstate Sentences' 'armed Robbery']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge failed to give adequate effect to the principle of totality when sentencing the applicant for New South Wales offences after he had served a Victorian sentence for similar offences committed close in time.' 'Whether backdating the New South Wales sentence only to the date the applicant was charged adequately accounted for the Victorian sentence.' 'Whether a finding of special circumstances could adequately address the totality issue arising from accumulation of the New South Wales sentence on the Victorian sentence.']

Ratio Decidendi

The sentencing judge erred by treating backdating to the date of charge, and a finding of special circumstances, as adequate to address totality. The date of the New South Wales charge did not answer the question required by Mill, namely what effective sentence would likely have been imposed had the New South Wales and Victorian offences been sentenced together. Because the resulting accumulation produced an excessive effective non-parole period without adequate reasoning, the Court resentenced the applicant by maintaining a 7-year sentence but commencing it earlier so that part of the Victorian and New South Wales non-parole periods operated concurrently.

Court Disposition

Leave to appeal granted; appeal granted; District Court sentence quashed; applicant resentenced to a non-parole period of 4 years and 3 months and a remainder of term of 2 years and 9 months.

Orders

  • ['Leave to appeal be granted.' 'Appeal be granted.' "The sentence imposed upon the applicant by the District Court (Judge Lerve DCJ) at Dubbo District Court on 31 March 2017 be quashed and the applicant be sentenced to a non-parole period of 4 years' and 3 months' imprisonment, commencing 30 October 2014 and...