R v Carberry; R v Deng; Carberry v The King

The appeals concerned sentencing decisions made by a judge of the District Court of New South Wales. The prosecution appealed against sentences imposed on the respondents, Carberry and Deng, for offences committed in custody, arguing they were manifestly inadequate and that the sentencing judge failed to consider section 35(4) of the *Crimes (Sentencing) Act 2005* (NSW). Carberry also appealed his sentence for aggravated robbery, alleging the sentencing judge had mistaken the facts. An application for an adjournment of the appeal hearing was also considered, sought by Carberry to review evidence from a civil proceeding concerning conditions in custody.

The primary legal issues before the Court of Criminal Appeal were whether the sentences imposed were demonstrably inadequate, particularly in light of the statutory requirement to consider section 35(4) of the *Crimes (Sentencing) Act 2005* (NSW) for offences committed in custody. Additionally, the Court had to determine if the sentencing judge had made a factual error in sentencing Carberry for aggravated robbery, and whether it possessed the power to vary sentences that had been pronounced but not yet formally recorded. The Court also had to consider the appropriateness of granting an adjournment to allow the offender to review evidence from related civil proceedings.

The Court of Criminal Appeal found that the sentencing judge had erred in failing to adequately consider section 35(4) of the *Crimes (Sentencing) Act 2005* (NSW) in relation to the offences committed in custody. This failure led to sentences that were manifestly inadequate. The Court also found that Carberry's appeal against his sentence for aggravated robbery was without merit, as no factual error had been established. The application for an adjournment was refused. The Court then resentenced the offenders, imposing significantly longer custodial terms to reflect the seriousness of the offences and the statutory requirements.