R v DB [2001] NSWCCA 320

New South Wales Court of Criminal Appeal

CITATION : R v DB [2001] NSWCCA 320 revised - 26/02/2002 FILE NUMBER(S) : CCA 60626/00 HEARING DATE(S) : 15 August 2001 JUDGMENT DATE : 15 August 2001

PARTIES : Regina DB JUDGMENT OF : Wood CJ at CL at 1, 32; Sperling J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/22/0150 LOWER COURT JUDICIAL Morgan DCJ OFFICER :

COUNSEL : T L Buddin SC with P Kintominas for the Applicant W G Dawe QC for the Crown SOLICITORS : Emil Ford & Co for the Applicant S E O'Connor for the Director of Public Prosecutions CATCHWORDS : Criminal Law - Sentencing - ill health - fresh exercise of sentencing discretion, without need to esxtablish error by sentencing judge, where medical conditions existed at time of sentencing but were not then known LEGISLATION CITED : Crimes Act 1900 (NSW), s61M & s78H Bailey (1988) 34 ACrimR 154 Burrell (2000) 114 ACrimR 207 Hunter (1984) 36 SASR 101 CASES CITED: McDonald (1988) 38 ACrimR 470 Ryan [2001] HCA 21 Sellen (1991) 57 ACrimR 313 Smith (1987) 44 SASR 587 Spagnolo (2000) 114 ACrimR 98 DECISION : 1. Extend time for application for leave to appeal and for appeal; 2. Grant leave to appeal and allow the appeal; 3. Re-sentence the applicant as follows: (a) In respect of the first count, imprisonment for three years commencing on 30 June 2000 with a non-parole period of one year and six months, expiring on 29 December 2001, on which date the applicant will be entitled to be released on parole; (b) In respect of the second count, imprisonment for a fixed term of twelve months, commencing on 30 June 2000 to be served concurrently with the sentence under count one; 4. Applicant to be released on parole on 30 December 2001, the conditions of parole to include that he be subject to supervision by the Probation and Parole Service.