Legal Research
Cases
PB v The King

PB v The King

Case [2025] NSWCCA 14 21 February 2025

Appeal

Sentencing

Kentwell error

Principle of Totality

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PB v R [2025] NSWCCA 14
Hearing dates: 6 February 2024
Date of orders: 21 February 2025
Decision date: 21 February 2025
Before: Mitchelmore JA at [1];
Walton J at [2];
N Adams J at [4].
Decision:
(1) Grant leave to appeal.
(2) Appeal allowed in part.
(3) The aggregate sentence imposed by Judge Whitford SC on 28 July 2024 is varied to commence from 10 February 2018 rather than 4 March 2018.

Catchwords:
CRIME – Appeals – Appeal against sentence – error by primary judge when backdating the commencement date of the sentence to the expiration of a non-parole period imposed for a separate sentence – whether error could be remedied by simple adjustment or whether the error required the court to re-exercise the sentencing discretion – whether error constituted a Kentwell error – principle of totality – re-sentencing required – Court not satisfied a lesser sentence warranted at law – sentence backdated to correct date of expiration of the non-parole period of the separate sentence

Legislation Cited:
Crimes Act 1900 (NSW), ss 61L, 61J(1)
Crimes (Sentencing Procedure) Act1999 (NSW), ss 21B, 22B, 33
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases Cited:
Hampton v R [2014] NSWCCA 131
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huynh v R [2024] NSWCCA 61
JA v R [2024] NSWCCA 130
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Mill v R (1988) 166 CLR 59; [1988] HCA 70
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v BF [2007] VSCA 217; (2007) 177 A Crim R 331
R v MAK, R v MSK [2006] NSWCCA 381; (2006) A Crim R 159

Category: Principal judgment
Parties: PB (Applicant)
Rex (Respondent)
Representation:
Counsel:
Mr T Ramrakha (Applicant)
Ms E Jones (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/00325879
Publication restriction:
Pursuant to s 578A of the Crimes Act 1900 (NSW), a statutory non-publication order applies with respect to the name of the complainant and any matter which could identify her.

Section 6 of the Criminal Law (Sexual Offences) Act 1978 (Qld) applies with respect to information likely to lead to the identification of the victim of the prior offences committed in Queensland.

Section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) applies with respect to any matter that contains particulars likely to lead to the identification of the victim of the prior offences committed in Victoria.
A suppression order applies in relation to the contents of a confidential document contained in the defence bundle on sentence.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 July 2024

Before:

Whitford SC DCJ

File Number(s):

2014/00325879

JUDGMENT

MITCHELMORE JA: I agree with N Adams J.
WALTON J: I have had the opportunity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading PB v The King

Details

AGLC: PB v The King [2025] NSWCCA 14
Case: [2025] NSWCCA 14
Decision Date: 21 February 2025

CaseChat Overview and Summary

PB was found guilty of several criminal charges and was sentenced by the primary judge. The defendant appealed the sentence, arguing that the primary judge erred by backdating the commencement date of the sentence to the expiration of a non-parole period imposed for a separate sentence. The legal issues before the court were whether the error could be remedied by a simple adjustment or whether it required the court to re-exercise the sentencing discretion, and whether the error constituted a Kentwell error. The principle of totality was also considered, as well as whether re-sentencing was required.

The court found that the error could not be remedied by a simple adjustment and that the court had to re-exercise its sentencing discretion. The court held that the error constituted a Kentwell error, which meant that the sentence was legally incorrect and had to be corrected. The principle of totality was considered, which meant that the court had to consider the overall sentence and not just the individual sentences. The court found that re-sentencing was required.

The court considered whether a lesser sentence was warranted at law, but was not satisfied that it was. The sentence was backdated to the correct date of expiration of the non-parole period of the separate sentence. The appeal was dismissed, and the original sentence was reinstated with the commencement date corrected.

Orders