Darcy v R [2022] NSWCCA 54

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Darcy v R [2022] NSWCCA 54 Hearing dates: 2 February 2022 Date of orders: 18 March 2022 Decision date: 18 March 2022 Before: Beech-Jones CJ at CL at [1] Davies J at [11] Bellew J at [12] Decision: (1) Leave to appeal against sentence is granted. (2) The appeal is allowed. (3) The aggregate sentence imposed in the District Court is quashed. (4) In lieu thereof, the applicant is sentenced to an aggregate term of 6 years imprisonment commencing on 1 January 2020 and expiring on 31 December 2025. (5) Specify a non-parole period of 3 years and 4 months imprisonment commencing on 1 January 2020 and expiring on 30 April 2023. (6) The applicant will be eligible for release on parole on 30 April 2023 and his sentence will expire on 31 December 2025. Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Statutory construction – Where applicant pleaded guilty to offences of entering a building or land with intent to commit and indictable offence – Where applicant also pleaded guilty to committing those offences after being convicted of an indictable offence – Whether two separate offences created or whether one offence should be regarded as an aggravated form of the other – Whether a miscarriage of justice arose from the fact of the applicant's pleas of guilty to both groups of offences PRACTICE AND PROCEDURE – Where sentencing judge cited incorrect maximum penalties for offences on the basis of erroneous material provided by the Crown – Where that error had the capacity to infect the exercise of the sentencing discretion – Leave to appeal granted – Applicant resentenced – Observations as to the pressure on Judges of the District Court and the consequent necessity for legal practitioners to ensure that accurate information is provided to a sentencing Court Legislation Cited: Crimes Act 1900 (NSW) Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) Drug Court Act 1998 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: Haines v R [2021] NSWCCA 149 Maldonado v R [2009] NSWCCA 189 McGovern aka Lanesbury v R [2021] NSWCCA 176 MM v R [2016] NSWCCA 235 Pearce v R (1998) 194 CLR 610; [1998] HCA 57 R v Darcy [2020] NSWDC 824 R v KCH [2001] NSWCCA 273 R v Sagiv (1986) 22 A Crim R 73 R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 R v Tillott (1991) 53 A Crim R 46 Category: Principal judgment Parties: Ethan Darcy – Applicant Regina – Respondent Representation: Counsel: K Averre – Applicant G Newton – Respondent