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Court of Criminal Appeal 15 April 2026

Jones v R

[2026] NSWCCA 36

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE BACKDATING TO ACCOUNT FOR PRE SENTENCE CUSTODY AND TOTALITY WITH PRE EXISTING SENTENCES

Citation: Jones v R [2026] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 15 April 2026
Judge(s): Wright J, Fagan J, Rigg J

Background

The applicant, a man in his early twenties, sought leave to appeal against the sentence imposed on him for one count of recklessly inflicting grievous bodily harm (s 35(2), Crimes Act 1900 (NSW)) and one count of intentionally damaging property. The offences occurred in Walgett in the early hours of 21 July 2023. The applicant had smashed his 18-year-old girlfriend's iPhone and then subjected her to a prolonged and violent assault on the street — punching her to the head, knocking her down, dragging her across the ground, kicking her in the jaw "with a lot of force," and pursuing her when she tried to escape. The sentencing judge described the attack as "remorseless in its conduct."

Following his arrest on 23 July 2023, the applicant was remanded in custody. His parole on a pre-existing sentence (for assaulting and resisting police) was revoked. While on remand, he made approximately 99 phone calls to the victim from prison in breach of an Apprehended Domestic Violence Order (ADVO), including calls in which he told her she "needed" the beating and threatened to burn her, stab her, and break her jaw again. He was sentenced in the Local Court for two sets of offences arising from those calls. On 29 November 2024, Judge Turnbull SC imposed an aggregate sentence of 5 years' imprisonment with a 3-year non-parole period for the index offences. The sentence was backdated, but the applicant contended that the backdating was insufficient and that the sentencing judge had erred in setting the commencement date.

The central dispute on appeal was whether the sentencing judge had properly accounted for the applicant's pre-sentence custody — some of which overlapped with the revoked parole period and with the Local Court sentences — and whether adequate reasons had been given for the chosen commencement date.

  • Whether the sentencing judge erred in setting the commencement date of the aggregate sentence, having regard to the need to account for pre-sentence custody and totality with pre-existing Local Court sentences.
  • Whether the sentencing judge failed to provide adequate reasons for the decision as to the commencement date.
  • Whether, if error was established, any lesser sentence was warranted on resentence.

Decision

The Court of Criminal Appeal dismissed the appeal, though the judges reached that conclusion by somewhat different reasoning.

Rigg J (with whom Wright J agreed on the primary reasoning) provided a detailed analysis of the three distinct issues involved in setting the commencement date. First, applying the principle of totality, the sentencing judge needed to decide the degree to which the aggregate sentence should be concurrent or cumulative with the Local Court sentences for the ADVO breaches and stalking/intimidation offences. Second, the applicant was entitled to credit for approximately 3 months and 8 days (6 November 2023 to 13 February 2024) during which he was in custody solely on remand for the index offences — a period governed by the established practice of backdating under the Crimes (Sentencing Procedure) Act 1999 (NSW). Third, applying the discretion recognised in Callaghan v R [2006] NSWCCA 58, the sentencing judge had a broad discretion as to whether to allow credit for the roughly 3 months and 14 days during which the applicant was on remand but was also serving out the balance of his earlier sentence following the revocation of parole. Rigg J concluded that the sentencing judge had not erred in the commencement date selected and dismissed the appeal.

Fagan J (with whom Wright J also agreed on this alternative point) would have upheld the ground that the sentencing judge failed to provide adequate reasons for the commencement date. His Honour noted that the sentencing remarks, while acknowledging the need to apply totality principles and to afford a "not insubstantial backdate," did not clearly articulate how the three distinct questions had been resolved. Despite finding that the reasoning was inadequate, Fagan J would have dismissed the appeal because, on resentence, no lesser sentence or earlier commencement date was warranted given the seriousness of the offending, the applicant's conduct while on remand, and the overall criminality involved.

Wright J agreed with both Rigg J's proposed orders and Fagan J's conclusion that no lesser sentence was warranted if the Court had needed to resentence.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Three distinct questions arise when backdating sentences: Where an offender has served pre-sentence custody overlapping with revoked parole periods and pre-existing sentences, the sentencing judge must separately address (1) the degree of concurrence or accumulation required by totality, (2) credit for time served solely on remand for the offences being sentenced, and (3) the discretionary treatment of time on remand that also counted towards a revoked parole period.

  • Under the Callaghan discretion, a sentencing judge may allow full, partial, or no credit for remand time that coincides with the service of a revoked parole period, and the Court of Criminal Appeal confirmed that considerable appellate latitude will be afforded to the exercise of that discretion.

  • A failure to articulate how each component of a backdating decision was resolved may constitute error, as Fagan J's judgment observed, though it will not necessarily lead to resentencing if the resulting sentence is not shown to be excessive.

  • Totality requires careful calibration across jurisdictions: Where an offender has been sentenced in the Local Court for related conduct and then faces sentencing in a higher court for the primary offending, the sentencing judge must consciously address how the respective sentences interact to produce an appropriate total period of imprisonment.

  • In dismissing the application for leave to appeal, the Court of Criminal Appeal found that the applicant's persistent and escalating contact with the victim from custody, including threats of extreme violence, weighed heavily against any contention that the overall sentence was excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1914 (Cth)

Key cases cited:
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
- AK v Western Australia [2008] HCA 8; 232 CLR 438
- Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Danishyar v R [2025] NSWCCA 46
- Hampton v The Queen [2014] NSWCCA 131; (2014) 243 A Crim R 193
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Mattiussi v R [2023] NSWCCA 289
- McMillan v R [2024] NSWCCA 83
- Borri v R [2023] NSWCCA 166