Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223 Hearing dates: 26 August 2020 Decision date: 02 September 2020 Before: Hoeben CJ at CL at [1]; Davies J at [2]; Adamson J at [3] Decision: Proceedings 2019/510 (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed in the District Court on 12 February 2020 and, in lieu thereof, impose an aggregate sentence of 3 years and 2 months' imprisonment commencing on 20 January 2020 and expiring on 19 March 2023 with a non-parole period of 19 months' imprisonment commencing on 20 January 2020 and expiring on 19 August 2021. Proceedings 2019/470 (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: SENTENCING — Appeal against sentence — Where sentencing judge erroneously referred to incorrect offence at conclusion of remarks of sentence — Where the offence had otherwise been identified correctly — Whether applicants sentenced for a more serious offence than charged — Slip in expression during ex tempore reasons SENTENCING — Appeal against sentence — Plea to reckless wounding in company — Whether sentencing judge erroneously had regard to injuries that might have exposed applicants to a more serious offence SENTENCING — Appeal against sentence — Co-offenders — Parity — Substantially similar subjective circumstances — Where co-offenders received same indicative sentence for offence of reckless wounding in company — Where one co-offender had lesser role in commission of that offence — Whether similarity in sentence justifiable Legislation Cited: Crimes Act 1900 (NSW), ss 33, 35 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 53A Cases Cited: Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Kingsley v R [2019] NSWCCA 19 McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: Proceedings 2019/510 Richard Minh Huy Cao (Applicant) Regina