Tompkins v R [2019] NSWCCA 37

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tompkins v R [2019] NSWCCA 37 Hearing dates: 13 February 2019 Decision date: 27 February 2019 Before: Hoeben CJ at CL at [1]; Schmidt J at [57]; Adamson J at [58] Decision: (1) Leave to appeal granted. (2) The appeal is allowed. (3) The sentence imposed on the applicant in the District Court on 21 November 2017 is quashed. (4) In lieu thereof, the applicant is sentenced to an aggregate sentence with a non-parole period of 5 years, commencing 21 May 2017 and expiring 20 May 2022, with a balance of term of 3 years expiring 20 May 2025. The applicant will be first eligible for parole on 20 May 2022. Catchwords: CRIMINAL LAW – sentence appeal – one charge of armed robbery and one charge of attempt aggravated taking of motor vehicle – applicant already serving sentence as a result of revocation of parole – whether sentencing judge took totality into account – considerable delay between arrest of applicant and sentence proceedings – delay not due to any fault on the part of applicant – whether sentencing judge erred in choosing as the commencement date for sentence the date on which sentence was imposed – error in sentencing judge failing to make allowance for delay in sentencing – need to re-sentence – commencement date of sentence backdated. Legislation Cited: Crimes Act 1900 (NSW) – ss 97(1), 154C(2), Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 47 Cases Cited: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 R v Moffatt (1990) 20 NSWLR 114 Warwick v R [2016] NSWCCA 183 White v R [2016] NSWCCA 190; 261 A Crim R 302 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Donny Tompkins – Applicant Regina – Respondent Crown Representation: Counsel: R Wilson – Applicant K Ratcliffe – Respondent Crown