R v Butler [2024] NSWCCA 133

R v Butler [2024] NSWCCA 133

Ground 1 was rejected because the sentencing judge's reference to pre-sentence custody was read as a slip meaning pre-sentence quasi-custody. Ground 2 was upheld because the respondent's bail conditions, including reporting, residence and curfew conditions with flexible exceptions, were not so harsh or restrictive as to amount to quasi-custody justifying six months of backdating. However, the Crown did not negate the Court's residual discretion not to interfere, having regard to the respondent's impressive and substantial rehabilitation, the unexplained delay and its deleterious effect on his mental health, the low risk of reoffending, and the five-year recognizance release order. The...

Jurisdiction
Australia
Judgment Date
24 July 2024
Procedural Posture
Crown Appeal Against Sentence / Appeal to the Court of Criminal Appeal From a Sentence Imposed in the District Court of New South Wales
Outcome
Crown appeal dismissed in the exercise of the Court's residual discretion.
Legal Topics
['manifest Inadequacy' 'backdating of Sentence' 'pre Sentence Custody' 'quasi Custody' 'bail Conditions' 'residual Discretion in Crown Sentence Appeals' 'recognizance Release Order' 'serious Drug Importation Offences' 'rehabilitation' 'delay']
['criminal Law' 'sentencing' 'criminal Appeals'] ['manifest Inadequacy' 'backdating of Sentence' 'pre Sentence Custody' 'quasi Custody' 'bail Conditions' 'residual Discretion in Crown Sentence Appeals' 'recognizance Release Order' 'serious Drug Importation Offences' 'rehabilitation' 'delay']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence / Appeal to the Court of Criminal Appeal From a Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the sentencing judge erred by finding that the respondent's bail conditions amounted to pre-sentence custody and backdating the sentence accordingly." "Alternatively, whether the sentencing judge erred by finding that the respondent's bail conditions amounted to quasi-custody such that the sentence could be backdated." "If error was established, whether the Crown had negated the Court's residual discretion not to interfere with the sentence imposed."]

Ratio Decidendi

Ground 1 was rejected because the sentencing judge's reference to pre-sentence custody was read as a slip meaning pre-sentence quasi-custody. Ground 2 was upheld because the respondent's bail conditions, including reporting, residence and curfew conditions with flexible exceptions, were not so harsh or restrictive as to amount to quasi-custody justifying six months of backdating. However, the Crown did not negate the Court's residual discretion not to interfere, having regard to the respondent's impressive and substantial rehabilitation, the unexplained delay and its deleterious effect on his mental health, the low risk of reoffending, and the five-year recognizance release order. The...

Court Disposition

Crown appeal dismissed in the exercise of the Court's residual discretion.

Orders

  • ["In the exercise of the Court's residual discretion the Crown appeal is dismissed."]