Black v R [2022] NSWCCA 17

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Black v R [2022] NSWCCA 17 Hearing dates: 24 November 2021 Date of orders: 11 February 2022 Decision date: 11 February 2022 Before: Simpson AJA at [1] Ierace J at [56] Dhanji J at [57] Decision: 1. Leave to appeal granted. 2. Appeal allowed, the sentence imposed in the Supreme Court quashed. 3. The applicant be resentenced to a term of imprisonment made up of a non-parole period of 3 years, 7 months and 10 days commencing on 7 July 2018, and expiring on 16 February 2022, with a balance of term of 2 years 5 days, expiring on 21 February 2024. Catchwords: CRIME — sentencing — manslaughter — guilty plea — discount to be applied — whether utilitarian discount under s 25E(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is available where offer to plead guilty to an offence made but initially refused by prosecutor — statutory construction — whether alternative less serious offence is a "different offence" to the subject of the proceedings — found — 25% discount applied under operation of s 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW) Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Black (No 1) [2021] NSWSC 73 R v Black (No 2) [2021] NSWSC 77 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Holmes (No 7) [2021] NSWSC 570 R v Tailford (No 2) [2021] NSWSC 695 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Category: Principal judgment Parties: Benjamin Black (Applicant) The Crown Representation: Counsel: M Avenell SC (Applicant) B K Baker/K Beattie (Crown)