Glynn Kaderavek v R [2018] NSWCCA 92

Glynn Kaderavek v R [2018] NSWCCA 92

The sentencing judge erred by commencing the aggregate sentence on 7 July 2015 because, after the expiry of the non-parole period for the earlier sentence of less than three years, the applicant was subject to a statutory parole order and was in custody bail refused for the present offences only from 7 April 2015. Although full accumulation on the earlier sentence was open and the sentencing judge did not fail to consider totality, the structure of the sentence effectively nullified the adjustment made for special circumstances. The Court therefore exercised the sentencing discretion afresh, imposed the same aggregate head sentence of 7 years, but backdated it to 7 April 2015 and fixed a...

Jurisdiction
Australia
Judgment Date
11 May 2018
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court of New South Wales
Outcome
Application for leave to appeal granted; appeal allowed; aggregate sentence quashed and applicant re-sentenced.
Legal Topics
['domestic Violence' 'aggregate Sentence' 'pre Sentence Custody' 'commencement Date of Sentence' 'statutory Parole Order' 'special Circumstances' 'totality Principle']
['criminal Law' 'sentencing'] ['domestic Violence' 'aggregate Sentence' 'pre Sentence Custody' 'commencement Date of Sentence' 'statutory Parole Order' 'special Circumstances' 'totality Principle']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred by commencing the aggregate sentence on 7 July 2015 rather than taking into account pre-sentence custody from 7 April 2015.' 'Whether the earlier sentence of less than three years and the statutory parole order affected the period for which the applicant was in custody only for the present offences.' 'Whether full accumulation of the aggregate sentence on the earlier sentence nullified the finding of special circumstances.' 'Whether the sentencing judge failed to apply the totality principle when determining accumulation between the aggregate sentence and the pre-existing sentence.']

Ratio Decidendi

The sentencing judge erred by commencing the aggregate sentence on 7 July 2015 because, after the expiry of the non-parole period for the earlier sentence of less than three years, the applicant was subject to a statutory parole order and was in custody bail refused for the present offences only from 7 April 2015. Although full accumulation on the earlier sentence was open and the sentencing judge did not fail to consider totality, the structure of the sentence effectively nullified the adjustment made for special circumstances. The Court therefore exercised the sentencing discretion afresh, imposed the same aggregate head sentence of 7 years, but backdated it to 7 April 2015 and fixed a...

Court Disposition

Application for leave to appeal granted; appeal allowed; aggregate sentence quashed and applicant re-sentenced.

Orders

  • ['Application for leave to appeal granted.' 'Appeal allowed.' 'The aggregate sentence imposed in the District Court is quashed and in lieu thereof:' 'The applicant is sentenced to an aggregate sentence of 7 years commencing 7 April 2015 and expiring 6 April 2022 with a non-parole period of 4 years and 6 months...