Wany v DPP [2020] NSWCA 318

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wany v DPP [2020] NSWCA 318 Hearing dates: 15 October 2020 Decision date: 10 December 2020 Before: Meagher JA at [1]; McCallum JA at [2]; Simpson AJA at [72] Decision: (1) An order that the record of the District Court proceedings in matter No 2018/00286636 be removed into this Court. (2) Pursuant to s 69B of the Supreme Court Act 1970, an order quashing the sentencing order imposed upon the plaintiff on 27 July 2020. (3) An order that the proceedings be remitted to the District Court to be heard and determined according to law. (4) Costs. Catchwords: APPEALS — Nature of appeal — Appeal by way of rehearing — sentence appeal pursuant to ss 11 and 17 of the Crimes (Appeal and Review) Act 2001 — de novo hearing — requirement that judge engage in fresh sentencing task — where judge adopted lower court's reasoning – whether judge failed to engage in task imposed by s 17 — whether constructive failure to exercise jurisdiction SENTENCING — Penalties — Intensive correction orders — where sentencing assessment reports indicated offender was a low risk of reoffending and was suitable for community service — whether community safety is a mandatory element for consideration under s 66(2) Crimes (Sentencing Procedure) Act — requirement for court to engage in assessment as to whether an ICO or full-time detention is more likely to address an offender's risk of reoffending Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 164, Pts 2, 3, 4A Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) Criminal Procedure Act 1986 (NSW), s 6(1) District Court Act 1973 (NSW), s 176 Interpretation Act 1987 (NSW), s 34(1) Marine Safety Act 1998 (NSW), s 13(1)(c) Supreme Court Act 1970 (NSW), ss 69B, 75A Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 18 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 5A, 7, 17D, 66, 73, 73A Cases Cited: Blanch v R [2019] NSWCCA 304 Casella v R [2019] NSWCCA 201 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Karout v R [2019] NSWCCA 253 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66 Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 R v Fangaloka [2019] NSWCCA 173 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 R v Zamagias [2002] NSWCCA 17 RO v R [2019] NSWCCA 183 Robbins v Commissioner of Taxation (1974) 129 CLR 332; (1974) 48 ALJR 367 Turnbull v R [2019] NSWCCA 97 Veness v Hodge [2015] NSWCA 20 Texts Cited: New South Wales Law Reform Commission, Sentencing (Report No 139, July 2013) New South Wales, Parliamentary Debates, Legislative Assembly, 10 June 2010, 24232 Category: Principal judgment Parties: Timothy Wany (Applicant) Director of Public Prosecutions (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: T Game SC, P Lange, D McMahon (Applicant) A M Mitchelmore SC, B K Baker (First Respondent)