Whitmore v R

1. [1]

   KIRK JA: I agree with Rigg J.

2. [2]

   FREE JA: I agree with Rigg J.

3. [3]

   RIGG J: The applicant, Tim Whitmore, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against his aggregate sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months, imposed by her Honour Noman SC DCJ on 9 December 2024. The sentence was ordered to commence on 1 December 2023 and expire on 31 May 2028, with the non-parole period expiring on 28 February 2026.

4. [4]

   The substantive offences for which the applicant was sentenced were: aggravated breaking and entering premises, and therein damaging property; breaking, entering and stealing; entering a dwelling with intent to steal; taking and driving a conveyance; dishonestly obtaining property; and driving whilst disqualified. A number of other offences were taken into account on Form 1 documents in determining indicative sentences for the dishonesty offences.

5. [5]

   The applicant was arrested on 25 February 2023 and remained in custody from that date. Some of the time in custody between 25 February 2023 and the sentencing of the applicant on 9 December 2024 was attributable to serving two other sentences of imprisonment for unrelated offences, in addition to being refused bail in connection with the offences for which sentence was imposed on 9 December 2024: an aggregate non-parole period of 4 months imprisonment ordered to be served from 23 March 2023 to 22 July 2023, and a non-parole period of 12 months imprisonment from 1 September 2023 to 31 August 2024.

6. [6]

   The applicant relies on two grounds of appeal:

   1. (1)

      The sentencing judge erred in failing to take into account a period of pre-sentence custody solely referrable to an offence for which the applicant was sentenced, when fixing the commencement date of the aggregate sentence; and

   2. (2)

      The sentencing judge erred in failing to consider all pre-sentence custody when considering totality and the commencement date of the aggregate sentence imposed.

7. [7]

   Given the extremely confined nature of the asserted errors, there is no need to set out the circumstances of the offending or the applicant’s personal circumstances. The parties agree that her Honour, by oversight, failed to take into account one period of pre-sentence custody of just under a month - from 25 February to 22 March 2023 - which was solely attributable to at least one offence before her Honour. The parties agree that making an adjustment for that period the correct commencement date for the sentence would have been 5 November 2023. The respondent accepts that it is accordingly open to the Court to uphold the appeal and re-sentence the applicant so that the commencement date for his sentence is 5 November 2023. The applicant does not otherwise challenge the length or timing of the sentence.

8. [8]

   Her Honour clearly paid regard to principles of totality in connection with the other offences for which periods of imprisonment were served in 2023 and 2024, and intended (as was required) to take into account periods of custody solely referable to the offences before her Honour. This was calculated by her Honour to be about 4 ½ months, by adding the period between 22 July and 1 September 2023 and that from 1 September 2024 to the date of sentencing. This was done after checking with the applicant’s representative that these were the only two relevant periods to account for. Neither side drew the period from 25 February to 22 March 2023 to her Honour’s attention.

9. [9]

   The joint position of the parties in this Court is correct. The applicant’s first ground of appeal must be upheld, and there is no need to consider the second. This was the applicant’s primary contention. 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].

Orders

1. [10]

   For these reasons, I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal from the sentence imposed on him in the District Court on 9 December 2024;

   2. (2)

      Set aside the sentence and re-sentence the applicant to:

   3. (3)

      The applicant will be first eligible for parole on 4 February 2026.