McKinnon v R [2020] NSWCCA 106

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McKinnon v R [2020] NSWCCA 106 Hearing dates: 15 May 2020 Date of orders: 27 May 2020 Decision date: 27 May 2020 Before: Payne JA at [1]; Beech-Jones J at [39]; N Adams J at [40] Decision: (1) Leave to appeal granted. (2) Appeal against sentence allowed. (3) Sentence imposed by Grant DCJ on 15 April 2019 is quashed and in lieu thereof the following sentence is imposed: (a) an aggregate sentence of 8 years, to commence on 2 May 2018 and expire on 1 May 2026, with an aggregate non-parole period of 5 years and 6 months, to commence on 2 May 2018 and expire on 1 November 2023. (4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: (a) for count 1, an indicative sentence of 5 years and 6 months with a non-parole period of 3 years and 9 months. (b) for count 2, an indicative sentence of 6 years and 6 months, with a non-parole period of 4 years and 4 months, which indicative sentence takes into account the Form 1 matters attached to this count. Catchwords: SENTENCING – aggregate sentence – indictment containing two counts – Form 1 offences – Form 1 attached to one count only – identical indicative sentences for each count – Crown conceded sentencing judge erred in taking Form 1 offences into account on both counts

SENTENCING – appeal against sentence – role of appellate court – resentence – Court of Criminal Appeal to exercise sentencing discretion afresh Legislation Cited: Crimes Act 1900 (NSW), s 193C(1) Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 32(1), 53A(2) Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2), 33(3) Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCA 518 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kliendienst v R [2020] NSWCCA 98 R v Nykolyn [2012] NSWCCA 219 Scott v R [2020] NSWCCA 81 Vaughan v R [2020] NSWCCA 3 Category: Principal judgment Parties: Stuart McKinnon (Applicant) Regina (Respondent) Representation: Counsel: D Barrow (Applicant) E Wilkins SC (Respondent)