SENTENCING — appeal against sentence — where applicant pleaded guilty to two counts of the same offence — whether sentencing Judge erred in elevating the objective seriousness of the second count by the fact of the first count having been committed earlier that day — error found — whether error could have affected the reasoning which led to the ultimate sentence imposed
SENTENCING — resentencing — sentence arrived at not lower than that imposed by the sentencing Judge — appeal dismissed
Quick Take
1A sentencing judge engages in impermissible double punishment by elevating the objective seriousness of one charged offence on the basis that another charged offence in the same sentencing exercise was committed earlier the same day; the commission of the earlier offence is not a legitimate factor increasing the objective seriousness of the later offence.
2Where an error in assessing the objective seriousness of one of the more serious offences contributing to an aggregate sentence is identified, the materiality threshold is met because the error could realistically have affected the reasoning leading to the ultimate sentence, applying Farrugia v The King [2026] HCA 28 and Benn v R [2023] NSWCCA 24.
3On resentencing, the appellate court exercises the sentencing discretion afresh and is not confined to the specific error found; if the sentence arrived at is not lower than that imposed below, the appeal must be dismissed notwithstanding that the ground of appeal was made out.
