R v Degn

The applicant in this case, R v Degn, appealed against the sentence imposed on him by the Court of Appeal of the Supreme Court of Victoria. The applicant was sentenced to six years imprisonment for rape, with parole eligibility set after two years. He had already served most of a previous six-year sentence at the time of the current sentence. The applicant argued that the sentencing judge erred by setting the parole eligibility date in relation to the sentence imposed, rather than the total period of imprisonment served. He contended that the sentencing judge failed to apply section 160F of the Penalties and Sentences Act 1992, and did not consider that the parole eligibility date would apply to the entire period of imprisonment. The applicant also argued that the sentence was manifestly excessive, as the parole eligibility date would be set eight years after he first went into custody.

The court was required to decide whether the sentencing judge had acted on the wrong principle by fixing the parole eligibility date in relation to the sentence imposed, rather than the period of imprisonment. The court also needed to determine whether the sentencing judge had failed to consider the total period of imprisonment when setting the parole eligibility date, and whether the total effect of the period of imprisonment was manifestly excessive. The court was required to consider whether the sentence miscarried due to the sentencing judge's failure to apply the correct legal principle.

The court found that the sentencing judge had acted on the wrong principle by fixing the parole eligibility date in relation to the sentence imposed, rather than the period of imprisonment. The court held that the sentencing judge failed to take into account that the parole eligibility date would apply to the entire period of imprisonment, and therefore misapplied the law. The court also found that the sentence was manifestly excessive, as the parole eligibility date would be set eight years after the applicant first went into custody. The court held that the sentencing judge, in applying the totality principle, had not had the requisite regard to the minimum time required to be served in custody. The court concluded that the sentencing discretion miscarried.

The court allowed the application for leave to appeal against sentence, allowed the appeal against sentence, and varied the sentence by substituting a parole eligibility date of 13 February 2022.