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Court of Criminal Appeal 10 December 2025

Whitmore v R

[2025] NSWCCA 214

Fraud & dishonestyTheft & property
CRIME APPEALS APPEAL AGAINST SENTENCE NO QUESTION OF PRINCIPLE APPEAL UPHELD APPLICANT RE

Citation: Whitmore v R [2025] NSWCCA 214
Court: Court of Criminal Appeal, NSW
Date: 10 December 2025
Judges: Kirk JA, Free JA, Rigg J (all agreeing)

Background

The applicant was sentenced in the District Court on 9 December 2024 to an aggregate term of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months, for a range of property and dishonesty offences including aggravated breaking and entering, breaking and entering and stealing, entering a dwelling with intent to steal, taking and driving a conveyance, dishonestly obtaining property, and driving whilst disqualified.

The applicant had been in continuous custody since his arrest on 25 February 2023. However, portions of that custody were attributable to two separate, unrelated sentences of imprisonment. The sentencing judge carefully attempted to account for the periods of pre-sentence custody solely referable to the offences before her, setting the sentence to commence on 1 December 2023.

The problem was that neither the sentencing judge nor the parties drew attention to a further period of just under one month, from 25 February to 22 March 2023, which was solely attributable to the offences being sentenced. That omission formed the basis of the appeal.

  • Whether the sentencing judge erred by failing to account for the period of pre-sentence custody from 25 February to 22 March 2023, which was solely referable to the offences for which sentence was imposed
  • Whether the sentencing judge failed more broadly to consider all relevant pre-sentence custody when applying totality principles and fixing the commencement date of the aggregate sentence

Decision

The parties were in agreement before the Court of Criminal Appeal that the sentencing judge, through oversight and with no assistance from either party at the time, had overlooked the period from 25 February to 22 March 2023. That period of just under one month was solely attributable to at least one of the offences for which the applicant was being sentenced. Both parties accepted that the correct commencement date for the sentence, had that period been accounted for, would have been 5 November 2023 rather than 1 December 2023.

Rigg J (Kirk JA and Free JA agreeing) found the first ground of appeal was established and upheld the appeal on that basis, making it unnecessary to consider the second ground. The Court accepted the joint position of the parties as correct.

The Court also confirmed that the error was arithmetical in nature, and that authority from the High Court in Kentwell v The Queen does not require a full re-exercise of sentencing discretion for an error of that kind. The Court instead corrected the commencement date and adjusted all relevant expiry dates accordingly.

Orders Made

  • Leave to appeal granted from the sentence imposed in the District Court on 9 December 2024
  • The sentence set aside and the applicant re-sentenced to:
  • A non-parole period of 2 years and 3 months, commencing 5 November 2023 and expiring 4 February 2026
  • A balance of term of 2 years and 3 months, expiring 4 May 2028
  • First eligible for parole: 4 February 2026

Key Takeaways

  • A sentencing court is required to account for all periods of pre-sentence custody solely referable to the offences being sentenced, and an oversight in identifying such a period constitutes an error warranting appellate correction.
  • Where the error is purely arithmetical, the Court of Criminal Appeal confirmed (consistent with Lehn v R) that Kentwell v The Queen does not require a full re-exercise of the sentencing discretion; the court may simply correct the commencement and expiry dates.
  • The omission arose despite the sentencing judge having specifically checked with the applicant's representative as to the relevant periods. Neither party identified the overlooked period at first instance, yet the error remained correctable on appeal.
  • The length and overall structure of the sentence were not challenged and remained unchanged; only the commencement date was in issue.
  • No question of principle was raised by this decision; its significance is confined to the specific arithmetical correction applied on the agreed facts.

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