Grimes v The The King

[2022] NSWCCA 237

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Grimes v R [2022] NSWCCA 237

Hearing dates:

7 November 2022

Date of orders:

7 November 2022

Decision date:

07 November 2022

Before:

Button J; Fagan J; Yehia J

Decision:

1. Leave to appeal out of time, and leave to appeal, is granted.

2. Appeal allowed.

3. The Applicant is sentenced to total term of imprisonment of 9 years, with a non-parole period of 6 years, commencing on 16 September 2019. The head sentence is to expire on 15 September 2028, and the non-parole period is to expire on 15 September 2025.

4. The first date on which the Applicant will be eligible for possible release to parole is 15 September 2025.

Catchwords:

CRIME – Appeals – Appeal against sentence – Miscalculation as to backdate of sentence – Concurrence between parties – Not an error which reopens sentencing discretion – Applicant re-sentence with correct backdate applied

Legislation Cited:

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lehn v R [2016] NSWCCA 45

Category:

Principal judgment

Parties:

Anthony John Grimes (Applicant)
Rex (Respondent)

Representation:

Counsel:
G Huxley (Applicant)
D Jordan (Respondent)

Solicitors:
Murphy’s Lawyers Inc (Applicant)
Solicitor for Public Prosecutions (Cth) (Respondent)

File Number(s):

2019/208457

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 April 2021

Before:

Norrish QC DCJ

File Number(s):

2019/00208457

REVISED EX TEMPORE JUDGMENT

1. THE COURT: Because of the very limited issue on this application for leave to appeal, and with the complete concurrence of the parties about that issue, we consider it appropriate to resolve this matter now.

2. Mr Anthony John Grimes (the applicant) was sentenced to imprisonment by Judge Norrish QC on 21 April 2021, after having pleaded guilty to one count of conspiring to import two border-controlled drugs in a commercial quantity.

3. The sentence comprised a head sentence of 9 years with a non-parole period of 6 years. Unfortunately, despite an explicit enquiry by the learned sentencing judge, there was confusion on the part of both counsel as to the precise backdate that should be afforded to the applicant.

4. The only proposed ground of appeal against sentence is to do with that backdate. The parties have agreed that the correct commencement date of the sentence is 16 September 2019. That is the considered position of the parties and it has been checked by both.

5. Furthermore, both parties are agreed that this is not the kind of error that re-opens the question of re-sentence at large, in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW); see also Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37 and Lehn v R [2016] NSWCCA 255 at [72]. Rather, it is a discrete or mathematical error that can be dealt with on its own.

6. We agree with that joint position of the parties, and that is what the following orders do.

Orders

1. Leave to appeal out of time, and leave to appeal, is granted.

2. Appeal allowed.

3. The Applicant is sentenced to total term of imprisonment of 9 years, with a non-parole period of 6 years, commencing on 16 September 2019. The head sentence is to expire on 15 September 2028, and the non-parole period is to expire on 15 September 2025.

4. The first date on which the Applicant will be eligible for possible release to parole is 15 September 2025.

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Amendments

09 December 2022 - Applicant's name corrected.