Dittavong v R [2017] NSWCCA 191

Dittavong v R [2017] NSWCCA 191

The only error in the original sentencing was a failure to backdate the commencement of sentence to credit Mr Dittavong for time already served in custody after parole expired. This arithmetical error does not require a resentencing exercise, just a correction of the commencement date. No error was made by the sentencing judge in declining to find special circumstances or in assessing the sentence as not manifestly excessive. The appeal should be allowed to correct the commencement of the sentence.

Parties
Applicant: John Dittavong; Crown: Regina
Jurisdiction
Australia
Judgment Date
18 August 2017
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal allowed. Sentence quashed and new sentence imposed.
Legal Topics
Appeal Against Sentence, Break, Enter and Steal, Sentencing Principles, Totality Principle, Special Circumstances, Manifest Excess
Criminal Law Appeal Against Sentence Break, Enter and Steal Sentencing Principles Totality Principle Special Circumstances Manifest Excess

Case Brief

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Parties

John Dittavong

Applicant

Regina

Crown

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentencing judge breached the principle of totality in imposing the new sentence
  2. 2 Whether the sentencing judge erred in declining to find special circumstances
  3. 3 Whether the sentence imposed was manifestly excessive

Ratio Decidendi

The only error in the original sentencing was a failure to backdate the commencement of sentence to credit Mr Dittavong for time already served in custody after parole expired. This arithmetical error does not require a resentencing exercise, just a correction of the commencement date. No error was made by the sentencing judge in declining to find special circumstances or in assessing the sentence as not manifestly excessive. The appeal should be allowed to correct the commencement of the sentence.

Court Disposition

Appeal allowed. Sentence quashed and new sentence imposed.

Orders

  • Grant leave to appeal.
  • Allow the appeal.