Regina v Maisey [2005] NSWCCA 347

New South Wales Court of Criminal Appeal

CITATION: Regina v Maisey [2005] NSWCCA 347

HEARING DATE(S): 6 September 2005

JUDGMENT DATE: 11 October 2005

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Smart AJ at 3

DECISION: Leave to appeal against sentence granted - Appeal against sentence dismissed

CATCHWORDS: Sentencing - robbery using corporal violence with infliction of grievous bodily harm - judge erred in relying on his own experience of effects of back injury and in failing to alert defence of his intended finding of victim's permanent back injury - procedural unfairness - grave offence and high criminality - on re-sentencing no lesser sentence warranted - non-parole period of 5 years 9 months balance of term of 3 years 3 months

Crimes Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995

R v Slack [2004] NSWCCA CASES CITED: Royall v The Queen (1990) 172 CLR 378

PARTIES: Regina v Troy James Maisey

FILE NUMBER(S): CCA 2005/882

(A) P Hamill SC COUNSEL: (C) J L Bennett SC

(A) S E O'Connor SOLICITORS: (C) S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0519

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/882 CCAP MCCLELLAN CJ AT CL GROVE J SMART AJ Tuesday, 11 October 2005 REGINA v Troy James MAISEY

Judgment

1. McCLELLAN CJ at CL: I agree with Smart AJ

2. GROVE J: I agree with Smart AJ

3. SMART AJ : Troy James Maisey seeks leave to appeal against a sentence comprising a non-parole period of 5 years 9 months imprisonment to commence on 3 January 2003 with a balance of term of 3 years 3 months to commence on 3 October 2008 and to expire on 2 January 2012 for the offence of robbery using corporal violence with infliction of grievous bodily harm. The offence carries a maximum penalty of 25 years imprisonment.