Dib v Rex [2023] NSWCCA 243

Dib v Rex [2023] NSWCCA 243

There is no legal basis in NSW, nor at common law or under federal law, to backdate or mathematically reduce a sentence to explicitly reflect uncredited time in custody not referable to the instant offence. However, parity required a reduction in sentence due to the justifiable sense of grievance arising from a co-offender’s reduced sentence post-appeal, and the applicant’s relativity in culpability. Accordingly, the sentence was adjusted to restore this relativity.

Jurisdiction
Australia
Judgment Date
06 October 2023
Procedural Posture
Criminal Appeal / Appeal Against Sentence From District Court of NSW Court of Criminal Appeal Decision
Outcome
Appeal allowed in part—extension of time and leave to appeal granted; original sentence set aside; applicant resentenced.
Legal Topics
['sentencing' 'parity Principle' 'federal Offenders' 'backdating Sentence for Uncredited Custody' 'appeals Against Sentence' 'conspiracy to Import Border Controlled Drug']
['criminal Law'] ['sentencing' 'parity Principle' 'federal Offenders' 'backdating Sentence for Uncredited Custody' 'appeals Against Sentence' 'conspiracy to Import Border Controlled Drug']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Sentence From District Court of NSW Court of Criminal Appeal Decision

Legal Issues

  1. 1 ['Whether the sentence should be backdated or reduced to account for time wrongly spent in custody on unrelated charges' 'Application of parity principle—unjustifiable disparity compared to co-offender' 'Whether the sentence imposed was manifestly excessive']

Ratio Decidendi

There is no legal basis in NSW, nor at common law or under federal law, to backdate or mathematically reduce a sentence to explicitly reflect uncredited time in custody not referable to the instant offence. However, parity required a reduction in sentence due to the justifiable sense of grievance arising from a co-offender’s reduced sentence post-appeal, and the applicant’s relativity in culpability. Accordingly, the sentence was adjusted to restore this relativity.

Court Disposition

Appeal allowed in part—extension of time and leave to appeal granted; original sentence set aside; applicant resentenced.

Orders

  • ['The time within which to appeal is extended to 6 September 2022.' 'Leave to appeal is granted.' 'The sentence imposed in the District Court on 27 April 2020 is set aside.' 'The applicant is sentenced to imprisonment comprised of a non-parole period of 10 years and 4 months, commencing on 8 August 2017 and expiring...