Robb v R [2019] NSWCCA 113

Robb v R [2019] NSWCCA 113

The applicant had not been released to parole when he committed the offence and the Children's Court had no power under s 66 of the Children (Detention Centres) Act 1987 (NSW) to revoke his parole. The purported revocation was ineffective, and after 26 July 2017 the applicant remained in custody only because bail was refused for the offence the subject of the appeal. The District Court sentence therefore had the wrong commencement date and should have commenced on 26 July 2017.

Jurisdiction
Australia
Judgment Date
17 May 2019
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal From Sentence Imposed in the District Court
Outcome
Application for leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced with sentence backdated and ordered to be released forthwith.
Legal Topics
['appeal Against Sentence' 'commencement Date of Sentence' 'pre Sentence Custody' 'parole Revocation' 'offence Committed While on Day Release']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'commencement Date of Sentence' 'pre Sentence Custody' 'parole Revocation' 'offence Committed While on Day Release']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal From Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing Judge erred in setting the commencement date for the sentence.' "Whether the sentencing Judge mistook the applicant's parole situation and wrongly treated parole as notionally revoked." 'Whether the sentencing Judge failed to take into account a discrete period of pre-sentence custody and the effect of delay.' 'Whether the sentencing Judge failed to take into account the effect of accumulation on the ratio between the effective non-parole period and the effective sentence.']

Ratio Decidendi

The applicant had not been released to parole when he committed the offence and the Children's Court had no power under s 66 of the Children (Detention Centres) Act 1987 (NSW) to revoke his parole. The purported revocation was ineffective, and after 26 July 2017 the applicant remained in custody only because bail was refused for the offence the subject of the appeal. The District Court sentence therefore had the wrong commencement date and should have commenced on 26 July 2017.

Court Disposition

Application for leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced with sentence backdated and ordered to be released forthwith.

Orders

  • ['Application for leave to appeal granted.' 'Appeal allowed.' 'Sentence imposed in the District court quashed and in lieu thereof the applicant is sentenced to imprisonment comprising a non-parole period of 1 year 6 months commencing on 26 July 2017 and expiring on 25 January 2019. There will be a balance of term of...