R v Jones [2004] NSWCCA 432

New South Wales Court of Criminal Appeal

CITATION : R v Jones [2004] NSWCCA 432 HEARING DATE(S) : 1 December 2004 JUDGMENT DATE : 10 December 2004

JUDGMENT OF : Tobias JA at 1; Sully J at 48; Hoeben J at 49 DECISION : (1) Leave to appeal granted; (2) Appeal allowed and the sentence imposed by his Honour Judge Maguire on 5 August 2004 quashed; (3) In lieu thereof, the respondent is sentenced to a term of imprisonment of 3 years which is to be taken to have commenced on 10 January 2004 and which will expire on 9 January 2007 with a non-parole period of 2 years which is to be taken to have commenced on 10 January 2004 and which will expire on 9 January 2006, on which date the respondent shall be released on parole; (4) It shall be a condition of such parole that; (a) the respondent be subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 during the period specified by those regulations, and; (b) immediately upon release on parole the respondent is to enter into a full-time drug rehabilitation program approved by his supervising parole officer and to remain in such program for as long as that officer considers it appropriate.

CATCHWORDS : CRIMINAL LAW - Sentence - Crown Appeal - Robbery whilst armed - Offence committed when on parole - Offender charged and sentenced while serving sentence of imprisonment for other offences - Sentence concurrent with pre-existing sentence - Sentence backdated - Sentence already expired when imposed - Sentencing judge imposed sentence as though he was sentencing at same time as earlier offences - Manifest inadequacy - Inappropriate, due to nature and serious of offence, to sentence as though sentence were being imposed at same time as earlier sentences - Totality LEGISLATION CITED : Criminal Appeal Act 1912 Crimes Act 1900 R v Henry & Ors (1999) 46 NSWLR 346 R v Pearce (1998) 194 CLR 610 R v Tran [1999] NSW CCA 109 R v Fernando [2002] NSW CCA 28 R v Vranic (NSW CCA 7 May 1991 unreported) CASES CITED : R v Cicekdag [2004] NSW CCA 357 Thompson (2000) 49 NSWLR 383 R v Kay [2004] NSWCCA 130 R v Cotter [2003] NSW CCA 273 R v KM [2004] NSW CCA 65 R v Hernando (2002) 136 A Crim R PARTIES : Regina Derek Louis Jones FILE NUMBER(S) : CCA 2004/2247 CCAP COUNSEL : A: P Miller R: R Hulme SC SOLICITORS : A: S Kavanagh R: S O'Connor