R v Perrin [2022] NSWCCA 170

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Perrin [2022] NSWCCA 170 Hearing dates: 28 March 2022 Date of orders: 15 August 2022 Decision date: 15 August 2022 Before: Ward P at [1] Harrison J at [2] Wright J at [3] Decision: (1) Questions a. and b. in the case stated are to be answered as follows: Question a. Does s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) constrain the length of a sentence of imprisonment that may be imposed by the Local Court, or the District Court on appeal, if the offender is not serving any sentence of imprisonment at the time of sentencing? Answer: No. Question b. Does s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) constrain the length of a sentence of imprisonment that may be imposed by the Local Court, or the District Court on appeal, if the offender is not serving any sentence of imprisonment at the time of sentencing but the sentence to be imposed is made cumulative or partly cumulative on a sentence that has been served? Answer: No. (2) The sentence imposed by Haesler SC DCJ on 17 August 2021 is quashed. (3) The matter is remitted to the District Court for the appeal relating to the sentence imposed on 24 June 2021 by McGowan LCM to be determined according to law. (4) The matter is listed in the District Court arraignment list in Wollongong on Tuesday 30 August 2022 at 9:30am for mention. Catchwords: CRIME – Appeal and review – Stated case – Question of law – Construction of s 58 of Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether "existing sentence" determined at the time the "new sentence" is being imposed or at the time the "new sentence" commences – Determined at time the "new sentence" is being imposed CRIME – Appeal and review – Stated case – Question of law – Construction of s 58 of Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether s 58 constrains the length of the sentence that can be imposed or is limited to constraining the extent of accumulation of sentences – Section 58 effectively constrains the length of a new sentence that can be imposed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 20, 30 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47, 53A, 53B, 55, 58 Crimes Act 1900 (NSW), s 444 (now repealed) Criminal Appeal Act 1912 (NSW), s 5B District Court Act 1973 (NSW), ss 9, 166 Cases Cited: Huynh v R (2021) 105 NSWLR 384; [2021] NSWCCA 148 Huynh v R [2008] NSWCCA 216; 188 A Crim R 287 Perrin v R [2021] NSWDC 408 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583 Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 Texts Cited: Explanatory Memorandum to the Crimes Legislation Further Amendment Bill 2003 (NSW) Category: Principal judgment Parties: Regina (Applicant) Cody Perrin (Respondent) Representation: Counsel: D Kell SC and E Jones (Applicant) R Wilson SC and S Fraser (Respondent) Solicitors: Office of the Director of Public Prosecutions (Applicant) Morrisons Law (Respondent) File Number(s): 2020/054156