Aiken v R [2011] NSWCCA 208

Aiken v R [2011] NSWCCA 208

The applicant's custody after 16 October 2008 was solely referable to the present offences and no order revoking parole had been made, so the sentencing judge erred in commencing the effective sentence by reference to the expiry of the parole period of the earlier sentence. The Court was required to re-sentence. Adjustments to individual sentences were also appropriate to resolve inconsistencies, but the total non-parole period and overall sentence were not altered. The parity ground did not justify further intervention because, after the adjustments, the differences between the applicant's sentences and Adam Aiken's sentences were not so marked or glaring, and the applicant's offending...

Jurisdiction
Australia
Judgment Date
09 September 2011
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Appeal Against District Court Sentences
Outcome
Leave to appeal granted; appeal upheld; District Court sentences quashed; applicant re-sentenced.
Legal Topics
['drug Supply Offences' 'application for Leave to Appeal Against Sentence' 'backdating Sentences' 'parole Period and Custody Referable to Present Offences' 'form 1 Offences' 'parity Between Co Offenders' 'totality' 'fixed Terms and Non Parole Periods']
['criminal Law' 'sentencing'] ['drug Supply Offences' 'application for Leave to Appeal Against Sentence' 'backdating Sentences' 'parole Period and Custody Referable to Present Offences' 'form 1 Offences' 'parity Between Co Offenders' 'totality' 'fixed Terms and Non Parole Periods']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Appeal Against District Court Sentences

Legal Issues

  1. 1 ["Whether the sentencing judge erred by backdating the applicant's sentence to commence after the expiry of the parole period of an earlier sentence of imprisonment when no order for revocation of parole had been made." 'Whether the individual sentences imposed were inconsistent with one another, having regard to the relative quantities involved in the counts and the sentence imposed for the count found to be most serious.' 'Whether the applicant had a legitimate sense of grievance when his sentences were compared with corresponding or relevant sentences imposed on the co-offender Adam Aiken.']

Ratio Decidendi

The applicant's custody after 16 October 2008 was solely referable to the present offences and no order revoking parole had been made, so the sentencing judge erred in commencing the effective sentence by reference to the expiry of the parole period of the earlier sentence. The Court was required to re-sentence. Adjustments to individual sentences were also appropriate to resolve inconsistencies, but the total non-parole period and overall sentence were not altered. The parity ground did not justify further intervention because, after the adjustments, the differences between the applicant's sentences and Adam Aiken's sentences were not so marked or glaring, and the applicant's offending...

Court Disposition

Leave to appeal granted; appeal upheld; District Court sentences quashed; applicant re-sentenced.

Orders

  • ['Grant leave to appeal.' 'Uphold the appeal and quash the sentences imposed in the District Court.' 'Count 7: a fixed term of 6 months commencing on 16 October 2008 and expiring on 15 April 2009.' 'Count 6: a fixed term of 12 months commencing on 16 October 2008 and expiring on 15 October 2009.' 'Count 1: a fixed...