Towney v R [2022] NSWCCA 289

Towney v R [2022] NSWCCA 289

The sentencing judge intended to accumulate the sentence imposed for the index offences upon the Local Court sentences by seven months, but made a mistake in calculating the commencement date by adding seven months to the wrong date. The judge had correctly recognised that the applicant had been in custody since 28 April 2020 and the error did not affect the sentencing discretion, totality assessment, or special circumstances finding. The appropriate response was therefore to vary the sentence by specifying the correct commencement date, 28 November 2020, rather than to re-exercise the sentencing discretion.

Jurisdiction
Australia
Judgment Date
15 December 2022
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From an Aggregate Sentence Imposed in the District Court of New South Wales
Outcome
Leave to appeal against sentence granted; appeal allowed; aggregate sentence varied to commence on 28 November 2020.
Legal Topics
['appeal Against Sentence' 'backdating Sentence of Imprisonment' 'pre Sentence Custody' 'totality Principle' 're Exercise of Sentencing Discretion' 'correction of Sentencing Error']
['criminal Law' 'sentencing' 'criminal Procedure'] ['appeal Against Sentence' 'backdating Sentence of Imprisonment' 'pre Sentence Custody' 'totality Principle' 're Exercise of Sentencing Discretion' 'correction of Sentencing Error']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From an Aggregate Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred in specifying the commencement date for the aggregate sentence.' 'Whether the error required a complete re-exercise of the sentencing discretion or could be corrected by varying the commencement date.']

Ratio Decidendi

The sentencing judge intended to accumulate the sentence imposed for the index offences upon the Local Court sentences by seven months, but made a mistake in calculating the commencement date by adding seven months to the wrong date. The judge had correctly recognised that the applicant had been in custody since 28 April 2020 and the error did not affect the sentencing discretion, totality assessment, or special circumstances finding. The appropriate response was therefore to vary the sentence by specifying the correct commencement date, 28 November 2020, rather than to re-exercise the sentencing discretion.

Court Disposition

Leave to appeal against sentence granted; appeal allowed; aggregate sentence varied to commence on 28 November 2020.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal allowed.' 'Vary the aggregate sentence of 4 years and 6 months with a non-parole period of 3 years imposed in the District Court on 19 August 2021 by specifying that it is to date from 28 November 2020.']