Kljaic v R [2023] NSWCCA 225

Kljaic v R [2023] NSWCCA 225

The words "any time for which the offender has been held in custody in relation to the offence" in ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) are not confined to the temporal duration of pre-sentence custody, but include occurrences and conditions experienced during that custody. It was therefore open to the sentencing judge to take COVID-19 restrictions, denial of psychiatric and psychological services, and denial of appropriate footwear during remand into account by backdating the sentence by an additional 30 days. That limited arithmetical adjustment was also permissible despite the principle of instinctive synthesis because it made the reasoning accessible...

Jurisdiction
Australia
Judgment Date
08 September 2023
Procedural Posture
Application for Leave to Appeal Against Sentence Under S 5(1)(c) of the Criminal Appeal Act 1912 (nsw) / Court of Criminal Appeal Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['appeal Against Sentence' 'pre Sentence Custody' 'backdating Commencement of Sentence' 'covid 19 Restrictions in Custody' 'extra Curial Punishment' 'instinctive Synthesis' 'aggregate Sentence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'pre Sentence Custody' 'backdating Commencement of Sentence' 'covid 19 Restrictions in Custody' 'extra Curial Punishment' 'instinctive Synthesis' 'aggregate Sentence']

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Procedural Posture

Application for Leave to Appeal Against Sentence Under S 5(1)(c) of the Criminal Appeal Act 1912 (nsw) / Court of Criminal Appeal Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by misapplying s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and setting the commencement of the non-parole period 30 days before the period representing the period actually spent by the applicant in pre-sentence custody.' 'Whether the sentencing judge erred by excluding from the instinctive synthesis the effects of COVID-19 restrictions on the applicant while he was remanded in custody in setting the aggregate sentence of imprisonment.']

Ratio Decidendi

The words "any time for which the offender has been held in custody in relation to the offence" in ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) are not confined to the temporal duration of pre-sentence custody, but include occurrences and conditions experienced during that custody. It was therefore open to the sentencing judge to take COVID-19 restrictions, denial of psychiatric and psychological services, and denial of appropriate footwear during remand into account by backdating the sentence by an additional 30 days. That limited arithmetical adjustment was also permissible despite the principle of instinctive synthesis because it made the reasoning accessible...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['The applicant has leave to appeal.' 'The appeal is dismissed.']