Darke v R [2022] NSWCCA 52

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Darke v R [2022] NSWCCA 52 Hearing dates: 27 September 2021 Date of orders: 16 March 2022 Decision date: 16 March 2022 Before: Johnson J at [1]; Lonergan J at [2]; Dhanji J at [76] Decision: (1) Grant leave to appeal against sentence. (2) Appeal allowed. (3) The sentence imposed on 15 February 2021 is quashed. (4) The applicant is sentenced to 3 years imprisonment commencing on 15 January 2020 and expiring 14 January 2023. (5) Direct that the applicant be released on giving security, self in the sum of $1, after serving 2 years for a period of 1 year commencing 14 January 2022, with the following conditions: (a) The offender must accept the supervision of Community Corrections NSW. (b) The offender must obey all reasonable directions of Community Corrections NSW. (c) The offender may not travel interstate or overseas without the permission of Community Corrections NSW. (d) The offender must undertake such treatment or rehabilitation programs that Community Corrections NSW reasonably directs including psychological counselling, EQUIPS (Addiction) (or similar program) and specific sex offender treatment program(s). Catchwords: CRIMINAL LAW – appeal against sentence – error conceded in respect of the failure to refer to and apply s16A(2AAA) of the Crimes Act 1914 (Cth) – resentence Legislation Cited: Crimes Act 1914 (Cth) Crimes Sentencing Procedure Act 1999 (NSW) Criminal Code Act 1995 (Cth) The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measure) Bill 2019 Cases Cited: Baden v R [2020] NSWCCA 23 Kentwell v R (2014) 252 CLR 601; 313 ALR 451; [2014] HCA 37 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114 Young (a pseudonym) v R [2021] NSWCCA 163 Category: Principal judgment Parties: Jayson David Darke (Applicant) Regina (Respondent) Representation: Counsel: S Kluss (Applicant) S Flood (Respondent)