Citation: Beattie v R [2025] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 12 September 2025
Judges: Stern JA; Free JA; Rigg J
Background
The applicant was sentenced in the District Court on 30 August 2024 for aggravated dangerous driving occasioning grievous bodily harm and failing to stop and assist after an impact causing grievous bodily harm. A series of further offences was taken into account on a Form 1 (a procedural mechanism allowing a court to acknowledge additional charges without imposing separate penalties). The sentencing judge imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and 4 months.
The applicant had been in custody since his arrest on 26 July 2022. He was also serving a separate 3-year aggregate sentence imposed in the Local Court on 6 May 2024, which commenced on 17 July 2023, relating to unrelated stealing offences.
At sentencing, the District Court judge expressed a clear intention to allow six months of accumulation between the Local Court sentence and the driving offences sentence. The sentence as formally imposed, however, commenced on 28 February 2023, which produced approximately seven months of accumulation rather than the six months his Honour had stated.
Legal Issues
- Whether the sentencing judge erred in setting the commencement date of the sentence by failing to give effect to his stated intention regarding the degree of accumulation upon the Local Court sentence.
Decision
Both parties agreed that the sentencing judge made an arithmetical oversight when translating his expressed intention into the formal commencement date. The intended outcome was six months of accumulation upon the Local Court sentence, but the date of 28 February 2023 produced approximately seven months of accumulation. The correct date to reflect the judge's stated intention was 25 January 2023.
The Court accepted this agreed position. It noted that, under the principle in Kentwell v The Queen (2014) 252 CLR 601, an error of this narrow arithmetical kind does not require the Court of Criminal Appeal to conduct a full re-exercise of the sentencing discretion. The Court corrected the commencement date accordingly and re-sentenced the applicant.
Orders Made
- Leave to appeal granted from the sentence imposed in the District Court on 30 August 2024.
- The sentence was set aside and the applicant was re-sentenced to:
- A non-parole period of 3 years and 4 months, commencing 25 January 2023 and expiring 24 May 2026.
- A balance of term of 1 year and 8 months, expiring 24 January 2028.
- The applicant will be first eligible for parole on 24 May 2026.
Key Takeaways
- Where a sentencing judge makes an arithmetical error in translating a stated sentencing intention into a formal commencement date, the Court of Criminal Appeal may correct the error without conducting a full re-exercise of the sentencing discretion, consistent with Kentwell v The Queen.
- The degree of accumulation between concurrent or partly concurrent sentences is a matter of expressed judicial intention, and the formal dates imposed must accurately reflect that intention.
- In correcting a commencement date error, the structure of the sentence (here, the non-parole period and balance of term) remained unchanged; only the start date was adjusted.
- Agreement between the parties as to the nature and effect of a sentencing error does not preclude the Court of Criminal Appeal from independently examining and accepting that agreed position.
- No question of principle arose in this appeal, underscoring that the decision is confined to its specific arithmetic oversight.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255