R v IRVING [2003] NSWCCA 127

R v IRVING [2003] NSWCCA 127

The failure to account for 7 days of pre-sentence custody triggered appellate intervention, but the asserted special-circumstances error was not established because the earlier sentence from 30 April 2001 had expired before sentencing and could not be included in calculating the proportion between the total sentence and non-parole period for these offences; any shortfall was at most about 5 weeks, the sentencing judge had regard to totality, and no less severe sentence was warranted in law.

Jurisdiction
Australia
Judgment Date
08 May 2003
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; sentences imposed on 2 August 2002 set aside and replacement sentences imposed to account for 7 days of pre-sentence custody.
Legal Topics
['assault Occasioning Actual Bodily Harm' 'break, Enter and Steal' 'pre Sentence Custody' 'special Circumstances' 'non Parole Period' 'totality']
['criminal Law' 'sentencing'] ['assault Occasioning Actual Bodily Harm' 'break, Enter and Steal' 'pre Sentence Custody' 'special Circumstances' 'non Parole Period' 'totality']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing demonstrably to take into account 7 days of pre-sentence custody solely referable to the offences.' 'Whether the sentencing judge erred by failing to give effect to his finding of special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999.' 'Whether any less severe sentence was warranted after correcting the pre-sentence custody error.']

Ratio Decidendi

The failure to account for 7 days of pre-sentence custody triggered appellate intervention, but the asserted special-circumstances error was not established because the earlier sentence from 30 April 2001 had expired before sentencing and could not be included in calculating the proportion between the total sentence and non-parole period for these offences; any shortfall was at most about 5 weeks, the sentencing judge had regard to totality, and no less severe sentence was warranted in law.

Court Disposition

Leave to appeal granted; sentences imposed on 2 August 2002 set aside and replacement sentences imposed to account for 7 days of pre-sentence custody.

Orders

  • ['Leave to appeal be granted.' 'The sentences imposed on 2 August 2002 be set aside and in lieu: Count one, a sentence of imprisonment for a fixed term of two years to commence on 26 July 2002 and to expire on 25 July 2004.' 'Count two, imprisonment for 4 ½ years to commence 26 July 2002 and to expire 25 January...