Callaghan v R [2006] NSWCCA 58

Reported Decision : 160 A Crim R 145

New South Wales Court of Criminal Appeal

CITATION: Callaghan v R [2006] NSWCCA 58

HEARING DATE(S): 21 February 2006

JUDGMENT DATE: 10 March 2006

JUDGMENT OF: James J at 1; Simpson J at 2; Hall J at 27

DECISION: Application for leave to appeal against severity of sentence granted; appeal dismissed.

CATCHWORDS: application for leave to appeal against severity of sentence - two charges of break and enter with intent to steal - pleas of guilty - offences committed whilst on parole - parole revoked - sentences in respect of present offences made fully cumulative upon the head sentence is respect of previous offences - effect of revocation of parole - whether applicant doubly punished for the fact that offences were committed whilst on parole - discretion to backdate a sentence where parole has been revoked by reason of the offence for which the offender is to be sentenced - exercise of discretion found not to have miscarried

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s21A(2)(j), s24, s50(1)

R v Eric John Andrews NSWCCA, unreported, 28 April 1993 R v Kaiva NSWCCA, unreported, 9 November 1998 R v Brett John Kelly [2000] NSWCCA 557 CASES CITED: R v Kitchener [2003] NSWCCA 134 R v Shane John Ravet [2001] NSWCCA 535 R v SAE NSWCCA, unreported, 3 April 1997 R v David Webb NSWCCA, unreported, 9 November 1998

PARTIES: Jason Callaghan - Applicant Crown - Respondent

FILE NUMBER(S): CCA 2006/293

COUNSEL: A Francis - Applicant V Lydiard - Respondent

SOLICITORS: SE O'Connor - Applicant S Kavanagh - Respondent