Owens v R [2023] NSWCCA 198

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Owens v R [2023] NSWCCA 198 Hearing dates: 28 April 2023 Date of orders: 16 August 2023 Decision date: 16 August 2023 Before: Wright J at [1] Wilson J at [100] Fagan J at [107] Decision: (1) The time for filing of the application for leave to appeal is extended to 26 August 2021. (2) The applicant has leave to appeal in respect of ground 1. (3) The appeal is upheld. (4) The aggregate sentence imposed on the applicant on 3 August 2018 is quashed. (5) In lieu, the applicant is sentenced to a non-parole period of 16 years 3 months, commencing on 5 October 2016 and expiring on 4 January 2033, and a balance of term of 5 years 6 months expiring on 4 July 2038. (6) The applicant will be eligible for release on parole on 4 January 2033. (7) The applicant is informed of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious offences" including the offence of murder for which he has been sentenced. This means that the State can apply to the Supreme Court for an order that he continue to receive supervision or be held in detention at the end of his sentence if the court considers he would be a "high risk offender" who poses an unacceptable risk of committing a serious offence. Catchwords: CRIME – appeals – appeal against sentence – assistance to authorities – determination of discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether sentencing judge erred in determining that the applicant was not entitled to a discount for promised assistance in respect of unrelated offending – appeal upheld – applicant resentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(m), 23, 53A(2) Crimes Act 1900 (NSW), ss 22 18(1)(a), 112(2), 154F Firearms Act 1996 (NSW), ss 51H(1), 65(3) Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5(5) Cases Cited: A v R [2018] NSWCCA 289 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Greentree v R [2018] NSWCCA 227 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Cartwright (1989) 17 NSWLR 243 R v XX [2017] NSWCCA 90 (2017) 266 A Crim R 132 RJT v R [2012] NSWCCA 280; 218 A Crim R 490 Spiteri-Ahern v R [2022] NSWCCA 56 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: Derek Owens (Applicant) Rex (Respondent) Representation: Counsel: M Avenell SC (Applicant) E Balodis (Respondent)