DG v R (No 1) [2023] NSWCCA 320

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DG v R (No 1) [2023] NSWCCA 320 Hearing dates: 1 November 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Before: Wilson J: Fagan J: Sweeney J Decision: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal. Catchwords: CRIME – appeals – appeal against sentence – imprisonment by way of intensive correction order ("ICO") – where applicant sentenced to term of imprisonment of 3 years and 6 months for drug and weapon offences – whether sentencing judge ought to have considered ICO as alternative to full-time detention – where ICO only available for aggregate term of imprisonment 3 years or less – whether aggregate ought to have been reduced by the period on remand rather than backdated to date of arrest so that aggregate less than 3 years – enlivening availability of an ICO not a relevant consideration in fixing duration and commencement date where a term of over 3 years is found appropriate CRIME – appeals – appeal against sentence – mitigating factors – whether sufficient weight given to applicant's uncontested evidence of non-exculpatory duress Legislation Cited: Crimes (Sentencing) Procedure Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Weapons Prohibition Act 1998 (NSW) Cases Cited: Eldridge v R [2011 NSWCCA 144 Mandranis v R [2021] NSWCCA 97 R v McHugh (1985) 1 NSWLR 588 R v Zamagias [2002] NSWCCA 17 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Tiknius v R [2011] NSWCCA 215 Zheng v R [2023] NSWCCA 64 Category: Principal judgment Parties: Rex (Respondent) DG (Applicant) Representation: Counsel: J Styles (Respondent) A Francis (Applicant)