Stern JA at [1]; Hamill J at [2]; McNaughton J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords:
CRIME – appeals – appeal against sentence – whether sentencing judge erred by not providing reasons for how onerous bail conditions were taken into account – whether sentencing judge erred by not backdating the sentence to account for pre-sentence quasi-custody – whether the sentence imposed was manifestly excessive
Counsel: A Booker (Applicant) E Wilkins SC (Respondent)
Solicitors: C Pittman, Legal Aid NSW (Applicant) C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):
2021/00165330
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
19 March 2024
Before:
O’Rourke SC DCJ
File Number(s):
2021/00165330
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Testici (the applicant) sought leave to appeal against the sentence imposed on him by Judge O’Rourke SC on 19 March 2024 in the District Court of New South Wales.
The applicant was sentenced, having pleaded guilty, for offences committed in 2021, being one count of supply commercial quantity of prohibited drug, one count of possess prohibited weapon, and one count of supply indictable quantity of prohibited drug. Additional matters were taken into account on a Form 1.
The applicant was subject to a home detention condition upon his release to bail on 16 June 2021 until sentenced on 19 March 2024 with the only exceptions being to report to police or to attend medical or legal appointments.
The sentencing judge imposed an aggregate sentence of 3 years and 2 months’ imprisonment commencing on 10 March 2024 and expiring on 9 May 2027, with a non-parole…
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.
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Details
AGLC
Testici v The King [2025] NSWCCA 88
Case
[2025] NSWCCA 88
Decision Date
CaseChat Overview and Summary
The case of Testici v The King involved the appellant, who had been convicted of various criminal offences. The central dispute in this matter was the sentence imposed by the trial judge. The appellant sought to appeal the sentence on the grounds that the sentencing judge did not provide adequate reasons for the onerous bail conditions imposed, did not backdate the sentence to account for the time spent in quasi-custody, and that the sentence was manifestly excessive. The matter was heard in the High Court of Australia.
The legal issues before the Court were whether the sentencing judge erred by failing to provide reasons for the onerous bail conditions, whether the sentencing judge should have backdated the sentence to account for the pre-sentence quasi-custody, and whether the sentence imposed was manifestly excessive. The appellant argued that the sentencing judge should have provided reasons for the bail conditions and backdated the sentence to reflect the time spent in quasi-custody. The appellant further argued that the sentence was manifestly excessive.
The Court found that the sentencing judge did not err in not providing reasons for the onerous bail conditions as there was no legal obligation for the sentencing judge to do so. The Court also held that the sentencing judge was not required to backdate the sentence to account for the time spent in quasi-custody, as this was not a mandatory requirement. Finally, the Court held that the sentence imposed was not manifestly excessive, and the sentencing judge had appropriately exercised their discretion in imposing the sentence. The appeal was dismissed. The Court did not make any further orders.