Regina v Niass [2004] NSWCCA 149

New South Wales Court of Criminal Appeal

CITATION : Regina v Niass [2004] NSWCCA 149 HEARING DATE(S) : 10/05/04 JUDGMENT DATE : 14 May 2004

JUDGMENT OF : Hodgson JA at 1; Levine J at 2; Hidden J at 3 DECISION : Appeal dismissed

CATCHWORDS : CRIMINAL LAW - Sentence - Crown appeal - break enter and steal - suspended sentence - delay - prospects of rehabilitation - whether sentence inadequate Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Mill v The Queen (1988) 166 CLR 59 R v Blanco (1999) 106 ACrimR 303 R v Hayes [2001] NSWCCA 358 CASES CITED : R v Ponfield (1999) 48 NSWLR 327 R v Todd (1982) 2 NSWLR 517 R v Zamagias [2002] NSWCCA 17 R v Foster [2001] NSWCCA 215 PARTIES : Regina - Applicant Barry John Niass - Respondent FILE NUMBER(S) : CCA 60035/04 COUNSEL : G Rowling - Crown H Dhanji - Respondent SOLICITORS : S Kavanagh - Crown SE O'Connor - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0119 FILE NUMBER(S) : LOWER COURT Payne DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60035/04

HODGSON JA LEVINE J HIDDEN J

Friday 14 May 2004

Regina v Barry John Niass Judgment 1 HODGSON JA: I agree with Hidden J. 2 LEVINE J: I agree with Hidden J. 3 HIDDEN J: After a trial at the Parramatta District Court before Payne DCJ and a jury, the respondent, Barry John Niass, was found guilty of a charge of break enter and steal: an offence under s112(1) of the Crimes Act, carrying a maximum penalty of fourteen years imprisonment. When he appeared for sentence he asked her Honour to take into account an offence of possessing a prohibited drug, arising from the fact that the police who arrested him in respect of the major offence found a small quantity of amphetamine in his possession. Taking that matter into account, her Honour sentenced him to imprisonment for two years with a non-parole period of fifteen months, but suspended that sentence under s12 of the Crimes (Sentencing Procedure) Act upon his entering into a bond to be of good behaviour for the period of the sentence. Pursuant to s5D of the Criminal Appeal Act, the Director of Public Prosecutions appeals against that sentence.