Donald (a pseudonym) v R [2021] NSWCCA 198

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Donald (a pseudonym) v R [2021] NSWCCA 198 Hearing dates: 2 July 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Before: Payne JA at [1]; Rothman J at [2]; Button J at [140] Decision: (1) Time for the filing the appeal be extended to allow for the Application for Leave to Appeal and Appeal to be filed on the date filed in this matter; (2) Leave to Appeal be granted; (3) Appeal be allowed and the sentence imposed on 19 June 2020 by the District Court at Sydney on the applicant, John Donald (a pseudonym), be quashed and, in lieu of the sentence, the following sentence be imposed: (a) The applicant be sentenced to an aggregate sentence of imprisonment of 4 years and 9 months, commencing 31 July 2019 and concluding 30 April 2024, with a non-parole period of 2 years and 4 months and two weeks, concluding 14 December 2021; (b) The applicant will be first eligible for release on parole on 14 December 2021 Catchwords: CRIME – Appeal – Sentence – sentencing judge misinformed as to maximum sentence for one of the offences – error requiring re-sentencing – aggregate sentence – approach to mental condition – Bugmy principles – Henry guideline – effect of accumulation on ratio and special circumstances – sentence imposed. Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 11, 44(2), 44(2B) Road Transport Act 2013 (NSW) s 54(1)(a) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Kentwell v The Queen (2014) 252 CLR 601; 238 A Crim R 134; [2014] HCA 37 R v DBN [2005] NSWCCA 435 R v Engert (1995) 84 A Crim R 67; (NSWCCA, 20 November 1995, unrep) R v LWP [2003] NSWCCA 215 R v Swan [2005] NSWCCA 252 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: John Donald (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: R Rodger (Applicant) C Young (Respondent)