TS v Regina [2007] NSWCCA 194

New South Wales Court of Criminal Appeal

CITATION: TS v Regina [2007] NSWCCA 194

HEARING DATE(S): 25 June 2007

JUDGMENT DATE: 5 July 2007

JUDGMENT OF: Giles JA at 1; James J at 37; Hislop J at 38

DECISION: (1) Grant leave to appeal. (2) Appeal allowed. (3) Quash the sentences imposed on 29 September 2006 and in lieu thereof sentence the applicant: (a) for each of offences 1, 2 and 3, to imprisonment for a non-parole period of 1 year 9 months commencing on 31 March 2005, and a balance of term of 1 year; (b) for offence 4, to imprisonment for a non-parole period of 2 years commencing on 30 September 2005, and a balance of term of 1 year 3 months; and (c) for offence 5, taking into account the offences on the Form 1, to imprisonment for a non-parole period of 2 years 6 months commencing on 31 March 2006, and a balance of term of 1 year 6 months. The appellant will be eligible for parole on 1 October 2008.

CATCHWORDS: Criminal law - sentencing - offences of armed robbery - errors in relation to pleas at earliest opportunity - and aggravating factors - and taking account of offences on a Form 1 - resentencing - reliance on material in reports without sworn evidence - juvenile offender - reliance on guideline judgment in R v Henry - resentencing more lenient than for adult offender.

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; R v Hemsley [2004] NSWCCA 228; R v Henry (1999) 46 NSWLR 346; R v Johnson [2004] NSWCCA 76; R v Pham & Ly (1991) 55 A Crim R 128; R v Qutami (2001) 127 A Crim R 369; CASES CITED: R v SDM (2001) 51 NSWLR 530; R v Shankley [2003] NSWCCA 253; R v Thompson & Houlton (2000) 49 NSWLR 383; R v Townsend & Cooper (CCA, 14 February 1995, unreported); R v Tran (1999) NSWCCA 109; R v Walker [2005] NSWCCA 109; R v Wickham [2004] NSWCCA 193; Veen v The Queen (No 2) (1988) 164 CLR 465.