Momoa v R [2020] NSWCCA 328

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Momoa v R [2020] NSWCCA 328 Hearing dates: 2 December 2020 Date of orders: 4 December 2020 Decision date: 10 December 2020 Before: McCallum JA at [1]; Johnson J at [51]; R A Hulme J at [52] Decision: 1. The Applicant is granted leave to appeal against the aggregate sentence passed at the Campbelltown District Court on 6 December 2019 for two offences of robbery in company contrary to s 97(1) Crimes Act 1900. 2. The appeal is allowed and the aggregate sentence is quashed. 3. The Applicant is sentenced to an aggregate term of imprisonment of 3 years and 8 months comprising a non-parole period of 1 year and 10 months commencing on 18 December 2018 and expiring on 17 October 2020 with a balance of term of one year and 10 months commencing on 18 October 2020 and expiring on 17 August 2022. 4. For the purpose of s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999, the indicative sentences are as follows: (a) for the offence on 15 December 2018 - imprisonment for one year and 11 months; (b) for the offence on 17 December 2018 - imprisonment for two years and seven months. 5. The Applicant is eligible for release on parole immediately. Catchwords: SENTENCING — Appeal against sentence — whether miscarriage of justice occasioned by incompetence of applicant's solicitor at sentence proceedings — where solicitor failed to obtain evidence from police about applicant's assistance to authorities — where solicitor failed to obtain or tender evidence about applicant's mental illness — where that evidence would have established mitigating factors relevant to the sentencing task