Perry v R [2021] NSWCCA 244

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Perry v R [2021] NSWCCA 244 Hearing dates: 25 August 2021 Date of orders: 11 October 2021 Decision date: 11 October 2021 Before: Bathurst CJ at [1]; Garling J at [2]; Wright J at [5] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed by the District Court on 15 October 2020 is quashed. (4) In lieu, the applicant is sentenced to imprisonment for a non-parole period of 1 year and 6 months commencing on 16 April 2020 and expiring on 15 October 2021 and a balance of the term of 1 year and 6 months expiring on 15 April 2023. Catchwords: CRIME — appeals — appeal against sentence — application for leave to appeal — misapplication of principle — De Simoni principle — where documentation provided by the parties assumed applicant had pleaded guilty to a more serious offence — parties' error identified during the hearing — whether sentencing judge nonetheless fell into error CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — whether sentence imposed was so far outside the range of sentences available that there must have been error CRIME — violent offences — reckless wounding — sentencing Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54A Crimes Act 1900 (NSW), ss 4, 35 Criminal Appeal Act 1912 (NSW), ss 5, 6 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Haoui v R [2008] NSWCCA 209 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Moriarty v Brooks (1834) 6 C & P 684; 172 ER 1419 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Swan v R [2016] NSWCCA 79 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Vallance v The Queen (1961) 108 CLR 56; [1961] HCA 42 Category: Principal judgment Parties: Matthew Scott Perry (Applicant) Regina (Respondent) Representation: Counsel: J Paingakulam (Applicant) C Dodds (Respondent)