R v Fleming

The case involved an appellant who had been sentenced for aggravated burglary and assault, as well as a breach of probation. The sentencing judge, uncertain about the procedures for dealing with a breach of probation, increased the head sentence for the original offences to avoid imposing a cumulative sentence for the breach. The appellant appealed against the sentence, arguing that the breach of probation did not require imprisonment and that the overall sentence was manifestly excessive. The appeal was heard and determined by the court.

The court had to decide whether the sentencing judge had acted on the wrong principle by increasing the head sentence for the original offences to avoid imposing a cumulative sentence for the breach of probation. Additionally, the court had to determine whether the sentence imposed, which was three years and six months, was manifestly excessive. The court considered the appropriate principles for dealing with a breach of probation and whether the breach in this case warranted a term of imprisonment. Furthermore, the court evaluated whether the overall sentence was excessive in light of the circumstances of the case.

The court found that the sentencing judge had indeed acted on the wrong principle by increasing the head sentence for the original offences. The court held that the breach of probation did not require the imposition of a term of imprisonment. Consequently, the court concluded that the sentence was manifestly excessive. The court allowed the appeal, set aside the sentences imposed for Counts 4 and 6, and instead sentenced the appellant to three years imprisonment on each of those counts. The court also fixed the parole release date as 17 November 2009, one year after the appellant entered custody. The declaration in relation to pre-sentence custody was not to be disturbed.

The final orders of the court were to allow the appeal, set aside the sentences imposed for Counts 4 and 6, sentence the appellant to three years imprisonment on each of those counts, fix the parole release date as 17 November 2009, and leave the declaration in relation to pre-sentence custody undisturbed.