Banat v R [2020] NSWCCA 321

Banat v R [2020] NSWCCA 321

The sentencing judge did not err by taking into account the second bail period but not the first because the first period required the applicant to be accompanied when leaving home but did not include the curfew and electronic monitoring imposed during the second period, did not amount to quasi-custody, and did not in practice prevent the applicant from offending. The aggregate sentence was not manifestly excessive given the very serious kidnapping offence, the applicant's criminal history, his conditional liberty at the time of offending, and the absence of findings of remorse, good prospects of rehabilitation or reduced moral culpability. However, the commencement date was miscalculated...

Jurisdiction
Australia
Judgment Date
15 December 2020
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal; Conviction Appeal Abandoned
Outcome
Leave to appeal against sentence granted; appeal allowed only to correct the commencement date and consequential expiry dates; appeal otherwise dismissed.
Legal Topics
['manifest Excess' 'conditional Bail as Quasi Custody' 'aggregate Sentence' 'non Parole Period' 'commencement Date of Sentence' 'pre Sentence Custody']
['criminal Law' 'sentencing' 'criminal Appeals'] ['manifest Excess' 'conditional Bail as Quasi Custody' 'aggregate Sentence' 'non Parole Period' 'commencement Date of Sentence' 'pre Sentence Custody']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal; Conviction Appeal Abandoned

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to take into account the applicant's first period of conditional bail as a relevant consideration." 'Whether the aggregate sentence of nine years with a non-parole period of six years was manifestly excessive.' 'Whether the commencement date of the sentence should be corrected to reflect pre-sentence custody.']

Ratio Decidendi

The sentencing judge did not err by taking into account the second bail period but not the first because the first period required the applicant to be accompanied when leaving home but did not include the curfew and electronic monitoring imposed during the second period, did not amount to quasi-custody, and did not in practice prevent the applicant from offending. The aggregate sentence was not manifestly excessive given the very serious kidnapping offence, the applicant's criminal history, his conditional liberty at the time of offending, and the absence of findings of remorse, good prospects of rehabilitation or reduced moral culpability. However, the commencement date was miscalculated...

Court Disposition

Leave to appeal against sentence granted; appeal allowed only to correct the commencement date and consequential expiry dates; appeal otherwise dismissed.

Orders

  • ['The applicant be granted leave to appeal against the sentence imposed in the District Court on 15 March 2019.' 'The appeal be allowed, to the extent that the commencement date of the sentence is varied to 20 July 2017, and the expiry date to 19 July 2026, with the non-parole period expiring on 19 July 2023.' 'The...