Shaw v R [2024] NSWCCA 241

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Shaw v R [2024] NSWCCA 241 Hearing dates: 29 November 2024 Date of orders: 29 November 2024 Decision date: 20 December 2024 Before: Davies J at [1]; N Adams J at [2]; Yehia J at [3] Decision: (1) Grant leave to appeal. (2) Uphold the appeal. (3) Quash the sentence imposed by the District Court on 22 January 2024. (4) In lieu of the sentence imposed in the District Court, impose an aggregate term of imprisonment of two years and three months, commencing 2 September 2023 and expiring 1 December 2025 with a non-parole period of one year and three months, expiring on 1 December 2024. Catchwords: CRIME – Appeals – aggravated enter dwelling with intent – steal property from dwelling house – larceny – whether there was a miscarriage of justice arising from the failure of the applicant's legal representatives to place important evidence relevant to the applicant's subjective case – respondent's concession that it is open to the Court to find the ground of appeal established – the absence of the material deprived the sentencing judge of a full consideration of the applicant's circumstances – miscarriage of justice established – ground upheld – resentence Legislation Cited: Crimes Act 1900 (NSW), ss 111(2), 117, 148 Criminal Appeal Act 1912 (NSW) , s 5(1)(c) Cases Cited: BB v R [2024] NSWCCA 13 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ET v R [2024] NSWCCA 131 Khoury v The Queen (2011) 209 A Crim R 509; [2011] NSWCCA 118 McInnes v R [2024] NSWCCA 104 R v Birks (1990) 19 NSWLR 677 R v Fordham (1997) 98 A Crim R 359 Rae v The Queen [2019] NSWCCA 284 Rossall v R [2021] NSWCCA 200 Shortland v R [2024] NSWCCA 174 Stubbings v R [2023] NSWCCA 69 Tsiakas v The Queen [2015] NSWCCA 187 Category: Principal judgment Parties: Jason Shaw (Applicant) Rex (Respondent) Representation: Counsel: A Hughes (Applicant) C Tran (Respondent)