Warwick v R [2016] NSWCCA 183

Warwick v R [2016] NSWCCA 183

The rehabilitation ground was not made out because the sentencing judge considered the evidence of rehabilitation and the weight to be given to it was discretionary. The totality ground was made out: although not raised by counsel, the totality principle was fundamental and required the sentencing judge to take account of the earlier sentence for similar offending committed shortly after the present offence. The failure to ask what additional penalty was required, having regard to the earlier sentence and all relevant circumstances including delay and rehabilitation, caused the sentencing discretion to miscarry. The appeal was allowed and the applicant was re-sentenced to a shorter term.

Jurisdiction
Australia
Judgment Date
22 August 2016
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal granted, appeal allowed, original sentence quashed, and substituted sentence imposed.
Legal Topics
['sentence Appeal' 'totality Principle' 'delay Between Offence and Sentence' 'rehabilitation' 'break Enter and Commit Serious Indictable Offence' 'non Parole Period']
['criminal Law' 'sentencing'] ['sentence Appeal' 'totality Principle' 'delay Between Offence and Sentence' 'rehabilitation' 'break Enter and Commit Serious Indictable Offence' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in not properly taking into account the applicant's progress towards rehabilitation in light of the delay between the offence and sentence." 'Whether the sentencing judge erred by failing to apply the totality principle when sentencing the applicant for an offence committed close in time to a similar offence for which he had already served a sentence.' 'Whether the Court should grant leave and re-sentence the applicant.']

Ratio Decidendi

The rehabilitation ground was not made out because the sentencing judge considered the evidence of rehabilitation and the weight to be given to it was discretionary. The totality ground was made out: although not raised by counsel, the totality principle was fundamental and required the sentencing judge to take account of the earlier sentence for similar offending committed shortly after the present offence. The failure to ask what additional penalty was required, having regard to the earlier sentence and all relevant circumstances including delay and rehabilitation, caused the sentencing discretion to miscarry. The appeal was allowed and the applicant was re-sentenced to a shorter term.

Court Disposition

Leave to appeal granted, appeal allowed, original sentence quashed, and substituted sentence imposed.

Orders

  • ['Grant leave to the applicant to appeal against the sentence imposed on him on 4 September 2015.' 'Allow the appeal.' 'Quash the sentence imposed on the applicant by the District Court on 4 September 2015 and instead impose in substitution a sentence of two years commencing on 3 September 2015 and expiring on 2...