Toop vs. Smart

Australia

26.07.2022

Criminal

Leave to appeal must not be given unless the Court is satisfied that the ground has a reasonable prospect of success

The Respondent was convicted after trial in the Magistrates Court of one charge of assault occasioning bodily harm and one charge of dangerous driving contrary to Section 61(1) of the Road Traffic Act, 1974. The magistrate imposed a total effective sentence of 16 months' immediate imprisonment which was backdated to 14 June 2018. The Appellant appeals the sentence on two grounds. First, that the magistrate erred in fact or law, or both, by ordering that the terms of imprisonment imposed be taken to have begun on 14 June 2018, contrary to Section 87(2) of the Sentencing Act, 1995, given a substantial proportion of the period between 14 June 2018 and the sentencing date was already taken into account in sentencing for other offences. Second, that the backdating by the magistrate gave rise to a miscarriage of justice.

Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum.

Respondent has substantially underserved his sentence by a matter of months not weeks. The purpose of backdating is to reflect time served. If the backdating fails to reflect the time served but substantially overstates it, then the purpose of Section 87 of the Sentencing Act has not been met. It is also contrary to Section 87(2) of the Sentencing Act. The prosecutor concurred in the backdating. However, the reality is that the prosecutor had no clear idea of what the period of backdating should have been.

Respondent was unconditionally released at the conclusion of his sentencing. A court might overlook an error of weeks but an error of months is far more significant. Similarly, the delay between sentencing and the hearing of the appeal is of lesser significance the greater the error in backdating. There has been a substantial miscarriage of justice and that it is appropriate that the appeal be allowed. To allow the Respondent to avoid serving a significant part of the sentence imposed on him for serious offending due to an error in the backdating would be a substantial miscarriage of justice. Accordingly, leave to appeal is granted.

Tags : Sentence Imposition Backdating

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