McCoy v The Crown [2006] FCAFC 134

FEDERAL COURT OF AUSTRALIA

McCoy v The Crown [2006] FCAFC 134

CRIMINAL LAW – sentencing – trial judge taking into account material not in evidence on the sentencing hearing – conditional release on recognizance extending beyond head sentence – sentence imposed by Supreme Court of Norfolk Island excessive considering maximum penalty, comparable sentences and plea of guilty – resentencing – conditions of release Criminal Law Act 1960 (Norfolk Island), ss 59, 556B, 556C(5) Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480 cited MARK VINCENT LEOPOLD McCOY v THE CROWN NSD 416 OF 2006

TAMBERLIN, GYLES AND STONE JJ

1 SEPTEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 416 OF 2006

ON APPEAL FROM THE SUPREME COURT OF NORFOLK ISLAND

BETWEEN: MARK VINCENT LEOPOLD McCOY

Appellant

AND: THE CROWN

Respondent

JUDGES: TAMBERLIN, GYLES AND STONE JJ DATE OF ORDER: 1 SEPTEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal against the sentence imposed upon the appellant, Mark Vincent Leopold McCoy, by the Supreme Court of Norfolk Island on 10 February 2006 be upheld. 2. The orders of 10 February 2006 be set aside and in lieu thereof it be ordered that: (1) Mark Vincent Leopold McCoy be sentenced to imprisonment for a term of two years, commencing from 10 February 2006. (2) Mark Vincent Leopold McCoy be released after having served at least 12 months of that said term, upon entering into a recognizance, without sureties, that he will: (a) be of good behaviour for the balance of the period of the said term; and (b) during that said period, reside in New South Wales and accept the supervision and guidance of the New South Wales Probation and Parole Service and obey all reasonable directions including any requirement by the Probation and Parole Service to attend a suitable rehabilitation course for the treatment of drug or alcohol dependency, provided that should the need arise during the said period by reason of the fact that there is a death in the immediate family of Mark Vincent Leopold McCoy (defined as his mother, father or sibling), Mark Vincent Leopold McCoy be granted permission to travel to and from New South Wales to Norfolk Island on compassionate grounds to attend the funeral of the member of his immediate family as defined. 3. There be no order as to costs of the appeal.