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: House v The King (1936) 55 CLR 499; [1936] HCA 40
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:
Solicitors:
Mr T Ramrakha (Applicant)
Ms E Jones (Respondent)
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…
Continue reading PB v The King
Sign in free to access the full text
- AGLC
- PB v The King [2025] NSWCCA 14
- Case
- [2025] NSWCCA 14
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.