Butler v R [2023] NSWCCA 100

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Butler v R [2023] NSWCCA 100 Hearing dates: 27 March 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Before: Beech-Jones CJ at CL at [1]; N Adams J at [2]; Yehia J at [88]. Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed on the applicant by Judge Craigie SC on 14 June 2022 is quashed. In lieu thereof, the applicant is sentenced to a term of imprisonment of 2 years to commence on 14 June 2022 and expire on 13 June 2024. He is to be released pursuant to a recognisance release order on 13 May 2023 conditional upon him being of good behaviour and agreeing to forfeit the sum of $1,000 should he be in breach of that order. Catchwords: CRIME – Appeal – Appeal against sentence – whether sentencing judge failed to assess prospects of rehabilitation and risk of reoffending – sentencing judge made no positive finding – ground upheld –whether applicant established justifiable sense of grievance in relation to his sentence compared with that of co-offender – where co-offender was instigator of offending but had stronger subjective case – ground upheld – applicant re-sentenced Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 6 (2) Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3) Crimes Act 1914 (Cth), ss 3LA(6), 16A(2)(n), 20 Trade Marks Act 1995 (Cth), s 148(1) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Fenech v R [2018] NSWCCA 160 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Huckstadt v R [2016] NSWCCA 22 Kentwell v The Queen (2014) 252 CLR]; [2014] HCA 37 Lloyd v R [2017] NSWCCA 303 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pogson v R [2012] NSWCCA 225 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Agius; R v Zerafa (2012) 87 ATR 528; [2012] NSWSC 978 R v Boughen; R v Cameron [2012] NSWCCA 17 R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8 R v Groombridge, unreported, 30 September 1990 NSW Court of Criminal Appeal R v SBR [2012] NSWCCA 233 Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 Tuivaga v R [2015] NSWCCA 145 Usher v R [2016] NSWCCA 276 Vartzokas v Zanker (1989) 51 SASR 277 Category: Principal judgment Parties: Damien Steven Butler (Applicant) Crown (Respondent) Representation: Counsel: Mr T Ramrakha (Applicant) Mr L Fernandez (Respondent)