Da Silva v R [2024] NSWCCA 216

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Da Silva v R [2024] NSWCCA 216 Hearing dates: 18 October 2024 Date of orders: 27 November 2024 Decision date: 27 November 2024 Before: Stern JA at [1]; Dhanji J at [72]; Faulkner J at [73]. Decision: (1) Grant leave to appeal. (2) Appeal is allowed. (3) Sentence imposed by Bennett DCJ on 6 December 2023 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of imprisonment, to commence on 29 September 2022, of ten years and nine months (to expire on 28 June 2033), with a non-parole period of six years and ten months (to expire on 28 July 2029). Catchwords: CRIME – appeals – appeal against sentence – denial of procedural fairness – whether sentencing judge rejected applicant's evidence of childhood abuse – whether any indication was given to applicant that issue was to be taken CRIME – appeals – appeal against sentence – denial of procedural fairness – where sentencing judge rejected applicant's evidence in psychological report CRIME – appeals – appeal against sentence – re-sentence Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Code (Cth) Judiciary Act 1903 (Cth) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) NSWLR 146; [2002] NSWCCA 518 Beevers v The Queen [2016] VSCA 271 Crane v R [2024] NSWCCA 87 DC v R [2023] NSWCCA 82 Devaney v R [2012] NSWCCA 285 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Edmonds v R [2022] NSWCCA 103 Henry v R [2009] NSWCCA 69 JA v R [2024] NSWCCA 130 KAB v R [2015] NSWCCA 55 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 McGregor v R [2024] NSWCCA 200 O'Neil-Shaw v The Queen [2010] NSWCCA 42 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318 Category: Principal judgment Parties: Alexandre Da Silva (Applicant) Rex (Respondent) Representation: Counsel: T Woods (Applicant) A Chhabra (Respondent)