McKENNA v REGINA [2007] NSWCCA 113

New South Wales Court of Criminal Appeal

CITATION: McKENNA v REGINA [2007] NSWCCA 113 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/04/07

JUDGMENT DATE: 18 May 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 5; Rothman J at 6

DECISION: (a) leave to appeal be granted; (b) the appeal be allowed and the sentence imposed on the applicant by Walmsley DCJ on 13 April 2006 (as amended on 5 April 2007) be quashed and in lieu thereof the following sentences be imposed: (i) for Count 3, the assault occasioning actual bodily harm in company committed on 14 August 2003, imprisonment comprising a non-parole period of 12 months to commence on 13 April 2006 and expire on 12 April 2007 with a remainder of term of 12 months to expire on 12 April 2008; (ii) for Count 1, the offence of maliciously inflict grievous bodily harm in company committed on 14 August 2003, imprisonment comprising a non-parole period of 12 months commencing 13 July 2006 and expiring 12 July 2007 with the remainder of sentence of 15 months to expire on 12 October 2008; (iiii) the total effective sentence imposed is one of 15 months non-parole period with a further 15 months for the remainder of the sentence and a total sentence of 30 months; (iv) the applicant will be first eligible for parole on 12 July 2007. The remainder of the non-parole period is to be served as part of a continuing full time custodial sentence.

CATCHWORDS: CRIMINAL LAW – SENTENCE APPEAL – Parity in sentencing – justifiable sense of grievance – no discernable distinction in subjective circumstances – principles of equal justice in sentencing – assistance and voluntary disclosure of guilt compared.

Crimes Act 1900 (NSW) LEGISLATION CITED: Crimes Legislation Amendment (Periodic and Home Detention) Act 2002 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)