Russell v R [2018] NSWCCA 115

Russell v R [2018] NSWCCA 115

The sentences imposed by the District Court were affected by error because the commencement dates, non-parole periods, overall sentence and stated concurrency were inconsistent, the individual sentences did not comply with s 47(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the errors were not merely discrete mathematical errors capable of correction. The Court therefore set aside the sentences and re-sentenced the applicant. On re-sentence, the applicant's advanced metastatic liver cancer, very short life expectancy, onerous custody conditions and proximity to family and palliative care meant that the purposes of sentencing had already been adequately served by time in...

Jurisdiction
Australia
Judgment Date
30 May 2018
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Re Sentencing After Sentence Appeal
Outcome
Leave to appeal in respect of Ground 2 granted; appeal allowed; District Court sentences quashed; applicant re-sentenced to aggregate sentences resulting in release to parole forthwith.
Legal Topics
['drug Supply' 'proceeds of Crime' 'aggregate Sentence' 'non Parole Period' 'resentencing' 'terminal Illness' 'parole']
['criminal Law' 'sentencing'] ['drug Supply' 'proceeds of Crime' 'aggregate Sentence' 'non Parole Period' 'resentencing' 'terminal Illness' 'parole']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Re Sentencing After Sentence Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by miscalculating custody periods and by making orders and remarks that were inconsistent and irreconcilable.' 'Whether the sentences should be set aside and the applicant re-sentenced.' "How the applicant's terminal liver cancer and very short life expectancy should be taken into account on re-sentence."]

Ratio Decidendi

The sentences imposed by the District Court were affected by error because the commencement dates, non-parole periods, overall sentence and stated concurrency were inconsistent, the individual sentences did not comply with s 47(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the errors were not merely discrete mathematical errors capable of correction. The Court therefore set aside the sentences and re-sentenced the applicant. On re-sentence, the applicant's advanced metastatic liver cancer, very short life expectancy, onerous custody conditions and proximity to family and palliative care meant that the purposes of sentencing had already been adequately served by time in...

Court Disposition

Leave to appeal in respect of Ground 2 granted; appeal allowed; District Court sentences quashed; applicant re-sentenced to aggregate sentences resulting in release to parole forthwith.

Orders

  • ['Leave to appeal in respect of Ground 2 granted.' 'Appeal allowed.' 'Sentences imposed by McLennan DCJ on 3 October 2017 quashed.' 'On each count, fix an aggregate sentence of 2 years 11 months to commence on 23 June 2016. Fix a non-parole period under s 158 of the Crimes (Administration of Sentences) Act 1999...