Regina v BOA MORTE [2003] NSWCCA 75

New South Wales Court of Criminal Appeal

CITATION : Regina v BOA MORTE [2003] NSWCCA 75 revised - 4/04/2003 HEARING DATE(S) : 19/03/03 JUDGMENT DATE : 19 March 2003

JUDGMENT OF : Studdert J at 27; Shaw J at 1 DECISION : Leave to appeal granted; appeal dismissed.

CATCHWORDS : Criminal Law - sentence - appeal - robbery in company - separate sentence for offence to be taken into account on form 1 - error of law - whether some other sentence warranted in law - application of Henry guidelines Crimes Act 1900; LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; CASES CITED : R v Barton [2002) 121 A Crim R 185; R v Henry (1999) 46 NSWLR 346; PARTIES : REGINA v BOA MORTE FILE NUMBER(S) : CCA 60005/03 COUNSEL : Crown: P.G. Ingram App: G. Bashir SOLICITORS : Crown: S.E. O'Connor App: D.J. Humpreys

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0344 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60005 of 2003

Studdert J Shaw J

19 March 2003 Regina v Milton Pinto Costa BOA MORTE Judgment 1 Shaw J: The applicant appeals against a sentence imposed by Bell DCJ in the District Court Sydney on 10 October 2002. The applicant pleaded guilty to an indictment on a charge of robbery in company pursuant to s 97(1) of the Crimes Act 1901. There was a request to take into account an offence of assault occasioning actual bodily harm pursuant to s 59 of the Crimes Act on the Form 1. 2 The trial judge imposed a sentence as follows: For the offence on the indictment, I indicate a head sentence of 3 years. For the offence on the Form 1 certificate, I indicate a sentence of 6 months. In other words, the sentence attaching to the indictment would be 42 months. From that I discount for the pleas of guilty, just under 25 per cent, a discount of 10 months, to reduce therefore an imposed head sentence of 32 months.