Sahartor v R [2020] NSWCCA 36

Sahartor v R [2020] NSWCCA 36

The application for leave to appeal against sentence was dismissed because no ground identified any error in Acting Judge Madgwick QC's sentencing reasoning and s 59 provided the proper statutory mechanism for addressing the effect of the quashing of the unrelated earlier sentence. The Court had jurisdiction to entertain the s 59 application, and rule 50C did not apply, but the application was refused in the exercise of discretion because it was brought after extensive delay and after significant intervening events, including further offending, an aggregate sentence, revocation of parole, service of the balance of parole and later release on parole. The consequences of an earlier...

Jurisdiction
Australia
Judgment Date
13 March 2020
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence and Application to Vary Commencement of Sentence Under S 59 of the Crimes (sentencing Procedure) Act 1999 (nsw) / Court of Criminal Appeal Decision on Applications Concerning a District Court Sentence Imposed on 7 December 2017
Outcome
The application for leave to appeal against sentence was dismissed and the application pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was refused.
Legal Topics
['variation of Commencement Date of Sentence' 'quashing of Unrelated Sentence' 'leave to Appeal Against Sentence' 'jurisdiction Under S 59' 'delay and Discretion' 'parole Consequences']
['criminal Law' 'sentencing' 'criminal Appeals'] ['variation of Commencement Date of Sentence' 'quashing of Unrelated Sentence' 'leave to Appeal Against Sentence' 'jurisdiction Under S 59' 'delay and Discretion' 'parole Consequences']

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence and Application to Vary Commencement of Sentence Under S 59 of the Crimes (sentencing Procedure) Act 1999 (nsw) / Court of Criminal Appeal Decision on Applications Concerning a District Court Sentence Imposed on 7 December 2017

Legal Issues

  1. 1 ['Whether the matter should be treated as an application for leave to appeal against sentence or as an application under s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether any sentencing error was identified to enliven appellate intervention on a sentence appeal.' 'Whether the Court had jurisdiction to determine a delayed application under s 59 after the earlier unrelated sentence had been quashed.' 'Whether rule 50C of the Criminal Appeal Rules (NSW) imposed a time limit or otherwise applied to the s 59 application.' "Whether the Court should exercise its discretion to vary the commencement date of the applicant's sentence in light of delay, later offences, later sentences, parole revocation and release on parole."]

Ratio Decidendi

The application for leave to appeal against sentence was dismissed because no ground identified any error in Acting Judge Madgwick QC's sentencing reasoning and s 59 provided the proper statutory mechanism for addressing the effect of the quashing of the unrelated earlier sentence. The Court had jurisdiction to entertain the s 59 application, and rule 50C did not apply, but the application was refused in the exercise of discretion because it was brought after extensive delay and after significant intervening events, including further offending, an aggregate sentence, revocation of parole, service of the balance of parole and later release on parole. The consequences of an earlier...

Court Disposition

The application for leave to appeal against sentence was dismissed and the application pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was refused.

Orders

  • ['The application for leave to appeal against sentence is dismissed.' 'The application pursuant to section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is refused.']