Beattie v R

THE COURT: On 30 August 2024 the applicant, Luka Beattie, was sentenced in the District Court for two offences, with a series of offences taken into account on a Form 1. The substantive offences were aggravated dangerous driving occasioning grievous bodily harm, and failing to stop and assist after an impact causing grievous bodily harm. The applicant was sentenced by his Honour Barrow SC DCJ to an aggregate sentence of 5 years imprisonment commencing on 28 February 2023 and expiring on 27 February 2028 with a non-parole period of 3 years and 4 months expiring on 27 June 2026.

The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence of imprisonment imposed upon him.

The single ground of appeal is that “The sentencing judge erred in setting the commencement date of the sentence by failing to give effect to his Honour’s stated intention with respect to accumulation.” Given the extremely confined nature of the asserted error, there is no need to set out the circumstances of the offending or the applicant’s personal circumstances.

The parties are agreed that his Honour, by oversight, failed to give effect to his stated intention, and that the appropriate commencement date is 25 January 2023.

The offending occurred on 26 July 2022, and on that date the applicant was arrested, charged, and refused bail.

The applicant was on bail for unrelated offending in February 2022 at the time of his arrest for the driving offences, and was also charged after his arrest with stealing two motor vehicles the day before the driving offences. These charges culminated in the imposition in the Local Court on 6 May 2024 of an aggregate 3 year sentence of imprisonment, ordered to commence on 17 July 2023. A non-parole period of 15 months was imposed, expiring on 16 October 2024.

The submission was advanced at first instance for the applicant that the commencement date of his sentence for the driving offences should be 27 July 2022. It is not clear why the day after his arrest was nominated; but the essential proposition was that there should be no accumulation upon the Local Court sentence. The Crown submitted that that applicant should receive credit for the period of approximately a year that was spent in custody between his arrest and the commencement of the sentence imposed in the Local Court, and some further allowance for totality.

His Honour indicated in his sentencing judgment that he proposed to:

The applicant contends that the commencement date of 28 February 2023 for the driving offences imposed a degree of accumulation upon the Local Court offences greater than the six months his Honour stated he intended to effect; namely, about seven months.

The respondent agrees with this proposition. It is the agreed position of the parties, which we accept, that to reflect his Honour’s intention of six months accumulation upon the sentence imposed in the Local Court the correct commencement date of the sentence should have been 25 January 2023.

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 does not require the Court to re-exercise the sentencing discretion in connection with an arithmetical error of this kind: see for example Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72].

For those reasons, the Court makes the following orders: