McMillan v R

[2024] NSWCCA 83

NSW Court of Criminal Appeal

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Catchwords

1. Criminal Law
2. › Sentencing
3. › Pre-sentence custody
4. › Calculation of pre-sentence custody
5. › Where time in custody partly referable to other offending
6. › Whether failure to properly consider all pre-sentence custody
7. › Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 47(3)
1. Criminal Law
2. › Sentencing
3. › Pre-sentence custody
4. › Effect of s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
5. › Whether s 24(a) applies to non-custodial penalties
6. › Whether pre-sentence custody relevant to borderline determination of non-custodial penalty
7. › Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4(3), 24(a)
1. Criminal Law
2. › Appeals
3. › Appeal against sentence
4. › Error in calculation of pre-sentence custody
5. › Whether resentencing exercise required
6. › Whether error more than mere arithmetical error

Quick Take

Section 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) operates independently of s 47(3) and applies to all penalties including non-custodial alternatives; where a Magistrate has taken pre-sentence custody into account in imposing a non-custodial penalty, that custody should not be counted again when sentencing for a related offence.

Case Details

Citation[2024] NSWCCA 83

CourtNSWCCA

JurisdictionNew South Wales

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Cited by2

2026Jones v RNSWCCA 36
2025Abdaly v RNSWCCA 127

Relies on12

2024Huynh v RNSWCCA 61
2023Kljaic v RNSWCCA 225
2023R v FfNSWCCA 186
2021Park v The QueenHCA 37
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