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Court of Criminal Appeal 15 December 2022

Towney v R

[2022] NSWCCA 289

Assault & violenceFirearms & weapons

Citation: Towney v R [2022] NSWCCA 289
Court: NSW Court of Criminal Appeal
Date: 15 December 2022
Judges: Davies J, Ierace J, R A Hulme AJ

Background

The applicant pleaded guilty in the District Court to recklessly causing grievous bodily harm and possessing a shortened firearm. Judge King SC imposed an aggregate sentence of 4 years and 6 months, with a non-parole period of 3 years, on 19 August 2021.

At the time of sentencing, the applicant was already subject to two sets of Local Court sentences. He had been arrested and refused bail on the index offences on 28 April 2020, and the sentencing judge had a discretion under s 47(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to backdate the new sentence to that date, subject to totality considerations.

The judge expressed an intention to commence the sentence seven months after the applicant's arrest. However, the resulting commencement date of 18 January 2021 reflected a calculation from 17 June 2020 (the Wyong Local Court sentencing date) rather than from 28 April 2020 (the actual date of arrest). The applicant sought leave to appeal on the basis of that error.

  • Whether the sentencing judge made an error in calculating the commencement date of the sentence
  • Whether that error required the Court of Criminal Appeal to re-exercise the sentencing discretion entirely, or whether it could confine itself to correcting the error alone

Decision

The Crown conceded the miscalculation, and the Court of Criminal Appeal agreed it was clear. The judge had correctly identified 28 April 2020 as the arrest date on multiple occasions in his remarks, but when calculating the commencement date had inadvertently added seven months to 17 June 2020 instead. The arithmetic error produced a commencement date approximately seven months later than the judge intended.

The more significant legal question was the appropriate remedy. The applicant argued for a complete re-exercise of the sentencing discretion. The Court rejected that submission, drawing on the High Court's guidance in Kentwell v The Queen (2014) 252 CLR 601 and the five-judge bench decision in Lehn v R (2016) 93 NSWLR 205.

Those authorities establish that not every sentencing error obliges an appellate court to re-exercise the discretion afresh. Where the error concerns the exercise of the distinct power to fix a commencement date under s 47(2), and does not infect the underlying sentencing discretion (such as determining the length of the non-parole period), correction of the error alone may be sufficient. The Court found that was precisely the situation here: the judge's exercise of the sentencing discretion was intact; only the arithmetic of the commencement date had gone wrong.

Applying the approach taken in Huynh v R [2022] NSWCCA 45, the Court varied the sentence by changing the commencement date to 28 November 2020, reflecting the judge's stated intention of commencing the sentence seven months after the actual arrest date of 28 April 2020.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • The aggregate sentence of 4 years and 6 months with a non-parole period of 3 years (imposed 19 August 2021) varied to date from 28 November 2020
  • The applicant becomes eligible for release on parole upon expiration of the non-parole period on 27 November 2023

Key Takeaways

  • A sentencing error confined to the calculation of a commencement date under s 47(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not automatically require a Court of Criminal Appeal to re-exercise the full sentencing discretion.
  • The distinction drawn in Kentwell v The Queen remains operative: not all errors in sentencing vitiate the exercise of the sentencer's discretion, and a court must assess whether the error actually infected the discretionary judgment or was a self-contained arithmetic mistake.
  • Under Lehn v R, the power to fix a commencement date is characterised as a distinct function from powers such as setting the non-parole period, which supports confining the appellate remedy to correction of the specific error.
  • Where a judge correctly identifies the relevant date multiple times in sentencing remarks but applies the wrong date in a single calculation, the Court of Criminal Appeal may treat this as an inadvertent miscalculation rather than a fundamental misdirection affecting the entire sentencing exercise.
  • Huynh v R [2022] NSWCCA 45 provides a direct precedent for correcting a backdating error without re-sentencing afresh, and Towney confirms that approach.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 47(1)-(3)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), ss 166, 168(3)
- Firearms Act 1996 (NSW), s 62(1)(b)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 40
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Huynh v R [2022] NSWCCA 45
- Almaouie v R [2021] NSWCCA 274
- Pearce v The Queen (1998) 199 CLR 610; [1998] HCA 57