Moiler v R [2021] NSWCCA 73

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Moiler v R [2021] NSWCCA 73 Hearing dates: 12 April 2021 Date of orders: 12 April 2021 Decision date: 21 April 2021 Before: Basten JA at [1]; Davies J at [3]; Button J at [4] Decision: 1. Grant the applicant leave to appeal from the sentence for reckless wounding imposed by the District Court on 24 April 2020. 2. Set aside the sentence for reckless wounding. 3. Resentence the applicant to a non-parole period of 19 months to date from 13 October 2019 and a balance of term of 17 months. 4. The effect is that the applicant is entitled to release on parole on 12 May 2021, with the balance of term due to expire on 12 October 2022. Catchwords: SENTENCING — appeal against sentence — reckless wounding — offender on parole for identical offence — schizophrenia and intellectual deficits — drug abuse — whether head sentence of imprisonment for 4 years after application of 25% discount manifestly excessive — approach to mental illness when not relied upon as direct or immediate cause of offending — approach to mental illness when inextricably bound up with drug abuse — ground established and head sentence and non-parole period reduced — recommendation that State Parole Authority consider imposing further conditions of parole Legislation Cited: Crimes Act 1900 (NSW), ss 35, 58 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Crimes (Administration of Sentences) Act 1999 (NSW), ss 128, 158 Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Texts Cited: Oxford Concise Medical Dictionary, 8th ed (2010) Category: Principal judgment Parties: John Moiler (Applicant) The Queen (Respondent) Representation: Counsel: