AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 21 February 2025

PB v R

[2025] NSWCCA 14

Sexual offencesAssault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE EXERCISE THE SENTENCING DISCRETION PRINCIPLE OF TOTALITY SENTENCING REQUIRED

Citation: PB v R [2025] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 21 February 2025
Judges: Mitchelmore JA, Walton J, N Adams J (reasons by N Adams J)

Background

The applicant pleaded guilty in the District Court to one count of assault with act of indecency and one count of aggravated sexual assault, arising from a violent attack on an 18-year-old woman in Newcastle in 1995. The applicant was not identified until 2011, when a DNA review linked him to the offending, and he was not arrested until 2022 while serving a sentence in Victoria. He was extradited to New South Wales and has been in custody on the present charges since that time.

The District Court imposed an aggregate sentence of 10 years and 6 months, with a non-parole period of 7 years, backdated to commence on 4 March 2018. The sentencing judge intended this date to fall shortly before the expiry of the non-parole period the applicant had been serving in Victoria. However, it was common ground on appeal that the Victorian non-parole period had in fact expired on 10 February 2018, not 4 March 2018.

The applicant sought leave to appeal on two grounds: first, that the commencement date was wrong; and second, that the overall sentence failed to properly apply the principle of totality.

  • Whether the sentencing judge erred by backdating the sentence to 4 March 2018 rather than the correct expiry date of the Victorian non-parole period (10 February 2018)
  • Whether that error could be corrected by a simple adjustment to the commencement date (a "Kentwell" correction) or whether it required the Court to re-exercise the sentencing discretion afresh
  • Whether the aggregate sentence failed to give proper effect to the principle of totality

Decision

The Court found that the sentencing judge was led into error regarding the commencement date of the Victorian non-parole period. Critically, the Court found that the sentencing judge's intention as to when the present sentence was meant to commence was unclear, given his Honour's language of "shortly prior to" the expiry of the Victorian non-parole period. Because of that ambiguity, the error could not be characterised as a simple, mechanical slip correctable without re-exercising the sentencing discretion. A full re-sentencing was therefore required under the principles in Kentwell v The Queen.

On re-sentencing, N Adams J adopted all the findings of the primary judge, including those relating to the guilty plea discount, totality, remorse, and special circumstances. The Court was not satisfied that a lesser sentence was warranted. In assessing the applicant's rehabilitation prospects, the Court noted that after the 1995 offending the applicant went on to commit further sexual violence in Queensland and then in Victoria while on parole, providing no basis for a more optimistic assessment than the primary judge had made.

Although the re-sentencing exercise produced a sentence higher than that imposed below, the Court noted it is not the usual practice of the Court of Criminal Appeal to impose a more severe sentence without first giving a "Parker warning" (an opportunity for the applicant to withdraw the appeal). No such warning had been given here, and the applicant's counsel had accepted that, if a lesser sentence was not warranted, the appropriate course was to allow the appeal in part and simply backdate the sentence to 10 February 2018. The Court adopted that course. Ground 2 (totality) was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • The aggregate sentence imposed by Judge Whitford SC on 28 July 2024 is varied to commence from 10 February 2018 rather than 4 March 2018.

Key Takeaways

  • Where a sentencing judge's intention as to the intended commencement date of a sentence is unclear, the error cannot be corrected by simple adjustment under Kentwell; a full re-exercise of the sentencing discretion is required.
  • A "Kentwell correction" (adjusting a sentence without a full re-sentencing) is available only where the error is capable of straightforward mechanical remedy and does not require the court to revisit the exercise of sentencing discretion.
  • The Court of Criminal Appeal confirmed its usual practice of not imposing a more severe sentence without first providing a "Parker warning," which alerts an appellant that the court may increase the sentence and gives them the opportunity to withdraw the appeal before judgment is reserved.
  • In dismissing the totality ground, the Court found no basis for departing from the primary judge's findings where the applicant's history of subsequent sexual offending supported a guarded assessment of rehabilitation prospects.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may impose a sentence more or less severe than that at first instance, but procedural considerations around the Parker warning inform how that power is exercised in practice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21B, 22B, 33
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Hampton v R [2014] NSWCCA 131
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Huynh v R [2024] NSWCCA 61
- JA v R [2024] NSWCCA 130
- Mill v R (1988) 166 CLR 59; [1988] HCA 70
- R v BF [2007] VSCA 217; (2007) 177 A Crim R 331
- R v MAK, R v MSK [2006] NSWCCA 381; (2006) A Crim R 159