REGINA v. MACBAIN [2005] NSWCCA 358

New South Wales Court of Criminal Appeal

CITATION: REGINA v. MACBAIN [2005] NSWCCA 358

HEARING DATE(S): Thursday 20 October 2005

JUDGMENT DATE: 20 October 2005

JUDGMENT OF: Spigelman CJ at 50; McClellan CJ at CL at 51; Hall J at 1

DECISION: 1. Leave to appeal be granted; 2. The appeal is allowed in relation to the commencement date of each of the sentences imposed in respect of count 1 (committed between 21 and 22 June 2001) and count 2 (committed on 16 April 2004), the appeal otherwise be dismissed; 3. The appellant is accordingly to be sentenced to concurrent terms of imprisonment as follows: Count 1 - to a term of imprisonment for a period of two years and six months commencing on 8 May 2004 with a non-parole period of one year to expire on 7 May 2005; Count 2 - to a term of imprisonment of five years and three months commencing on 8 May 2004 with a non-parole period of three years to expire on 7 May 2007. The appellant, accordingly, will be eligible for release on parole on 7 May 2007.

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Kitchener [2003] NSWCCA 134 Kaiva (NSWCCA, unreported 9.11.98) Walker [2004] NSWCCA 230 McHugh (1985) 1 NSWLR 588 Deeble (NSWCCA, unreported 19.9.91) Newman & Simpson (2004) 145 A. Crim. R. 361 Ponfield (1999) 48 NSWLR 327 CASES CITED: Veen (No. 2) (1987-88) 164 CLR 465 DPP v. Ottewell (1970) AC 642 Johnstone [2005] NSWSC 80 Gallagher (1981) 23 NSWLR 220 Markarian (2005) 79 ALJR 1048 H [2005] NSWCCA 282 Saleib [2005] NSWCCA 85 Thomson & Houlton (2000) 49 NSWLR 383