Flick v R [2023] NSWCCA 197

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Flick v R [2023] NSWCCA 197 Hearing dates: 7 June 2023 Decision date: 18 August 2023 Before: Meagher JA at [1] Wilson J at [2] Sweeney J at [97] Decision: (1) Extend the time in which to file an application for leave to appeal until 24 February 2023; (2) Grant leave to appeal; (3) Set aside the aggregate sentence imposed in the District Court on 6 December 2021, and re-sentence as follows: (a) For offence sequence H734/1, taking into account the offence of stealing a motor vehicle, note an indicative sentence of 2 years and 3 months imprisonment with non-parole period of 1 year and 7 months; (b) For offence sequence H734/2, taking into account the offence of stealing a motor vehicle, note an indicative sentence of 2 years and 2 months imprisonment with a non-parole period of 1 year and 6 months; (c) Impose an aggregate sentence of 8 years and 9 months imprisonment, to date from 19 December 2019; with a non-parole period of 4 years and 10 months. The aggregate term will expire on 18 September 2028. The non-parole period will expire on 18 October 2024. Catchwords: CRIME – appeal against sentence – multiple aggravated break and enter offences – associated larceny offences – custodial offences – question of correctness of findings on sentence concerning features of statutory aggravation – in company – use or threaten to use weapon – relevance of Form 1 offences to the assessment of objective seriousness – principal offences inextricably linked to Form 1 offences – impact of COVID-19 – no evidence before the sentencing court as to the effect of COVID-19 on conditions in custody – general claim of hardship is insufficient – leave granted – applicant re-sentenced Legislation Cited: Children (Detention Centres) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DPP (NSW) v TH [2023] NSWCCA 81 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 McKinnon v R [2020] NSWCCA 106 Ragg v R [2022] NSWCCA 150 RO v R [2019] NSWCCA 183 Scott v R [2020] NSWCCA 81 Singh v R [2021] NSWCCA 96 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Wass v R [2022] NSWCCA 143 Category: Principal judgment Parties: Daniel Flick (Applicant) Rex (Respondent) Representation: Counsel: C Mendes (Applicant) M Swift (Respondent)