SF v R [2022] NSWCCA 216

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SF v R [2022] NSWCCA 216 Hearing dates: 8 April 2022 Decision date: 07 October 2022 Before: Simpson AJA at [1]; Hamill J at [2]; Ierace J at [3] Decision: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 7 years backdated to commence on 29 January 2019 and expiring on 28 January 2026, with a non-parole period of 4 years 2 months. The earliest date the applicant will be eligible for release to parole is 28 March 2023. Catchwords: CRIME – Appeals – Appeal against sentence – Covid-19 pandemic – where sentencing judge acknowledged the impact of the Covid-19 pandemic during the proceedings on sentence – where remarks on sentence did not expressly acknowledge the likely impact of Covid-19 on conditions of imprisonment – whether sentencing judge erred by failing to take into account that the Covid-19 pandemic renders conditions of imprisonment more onerous CRIME – Appeals – Appeal against sentence – Parity – where applicant and a co-offender were each sentenced by a different sentencing judge – whether there is a disparity in the sentence of the applicant and the co-accused that gives rise to a justifiable sense of grievance on the applicant's behalf – discussion of how the respective ratios of the non-parole period to the head sentence of each co-accused are compared Legislation Cited: Crimes Act 1900 (NSW), s 93T Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44 Drug Misuse and Trafficking Act 1985 (NSW), s 24 Cases Cited: Church v R [2012] NSWCCA 149 Dunshea v R [2016] NSWCCA 244 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Li v R [2005] NSWCCA 442 Lin v R [2006] NSWCCA 258 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Moodie v R (2020) 24 A Crim R 87; [2020] NSWCCA 160 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Edwards (1996) 90 A Crim R 510 R v Pearce [2020] NSWCCA 61 Stojanovski v R [2013] NSWCCA 334 Thach v R [2018] NSWCCA 252 Valentine v R [2020] NSWCCA 116 Category: Principal judgment Parties: SF (Applicant) Rex (Respondent) Representation: Counsel: S Flood (Applicant) E Wilkins SC (Respondent)