Brown v R [2024] NSWCCA 136

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brown v R [2024] NSWCCA 136 Hearing dates: 25 March 2024 Decision date: 26 July 2024 Before: Harrison CJ at CL at [1]; Button J at [2]; Dhanji J at [96] Decision: (1) Leave to appeal against sentence granted, appeal upheld, and sentence imposed at first instance quashed. (2) Instead, the applicant is sentenced to an aggregate head sentence of 4 years, to commence on 1 February 2023 and expire on 31 January 2027, with a non-parole period of 2 years 10 months, to expire on 30 November 2025. (3) The first date upon which it appears the applicant will be eligible for possible release to parole is 30 November 2025. Catchwords: CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – where applicant on conditional liberty at time of offending – new aggregate sentence partly cumulative upon balance of parole – whether error in failure to consider the effect of the applicant's balance of parole on the "statutory ratio" between total non-parole period and total head sentence – where special circumstances not found – no evidence of express intention to extend ratio beyond 75% – appeal allowed – discussion of issues arising from Kentwell v The Queen and Lehn v R – applicant resentenced afresh – lesser sentence warranted in law CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – one count of enter dwelling-house with intent to commit larceny – circumstances of aggravation – whether error in finding the offending was aggravated by the fact that it was committed in a home – discussion of complexities surrounding aggravating factors listed in Crimes (Sentencing Procedure) Act 1999 (NSW) – no error by way of double counting established – breadth of statutory definition of "dwelling-house" – authorities to the effect that concepts underpinning "dwelling-house" and "home" are different CRIME – appeals – sentence appeal – manifest excess – extensive criminal record – offending whilst subject to conditional liberty – history of disciplinary actions in custody – background of profound deprivation – mental illness – drug and alcohol dependence – whether sentence imposed failed to reflect appropriate consideration of the applicant's disadvantaged upbringing and history of abuse – difference between satisfaction that sentence imposed is manifestly excessive and satisfaction that lesser sentence is warranted in law on resentence – sentence imposed not manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) ss 4, 99(1), 105A(f), 111(2), 112, 117, 154F, 195(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(eb) Criminal Appeal Act 1912 (NSW) s 6(3) Drug Misuse and Trafficking Act 1985 (NSW) s 10(1) Cases Cited: Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237 BB v R [2017] NSWCCA 189 Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 Brennan v R [2018] NSWCCA 22 Christian v R [2021] NSWCCA 300 Chung v R [2017] NSWCCA 48 DB v R [2024] NSWCCA 18 Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43 Hardey v R [2019] NSWCCA 310 Huang v R [2017] NSWCCA 312 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Bennett (2014) 254 A Crim R 1; [2014] NSWCCA 197 Sausa v R [2023] NSWCCA 95 Category: Principal judgment Parties: Zarad Brown (Applicant) Rex (Respondent) Representation: Counsel: S Kluss (Applicant) E Wilkins SC (Respondent)