Black v R [2008] NSWCCA 337

New South Wales Court of Criminal Appeal

CITATION: Black v R [2008] NSWCCA 337

HEARING DATE(S): 15 December 2008

JUDGMENT DATE: 22 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 25; Latham J at 26

1.Leave to appeal granted and appeal upheld. DECISION: 2.Sentence imposed in the District Court quashed. 3.Sentence the applicant to a non-parole period of 18 months commencing on 6 April 2009 and expiring on 5 October 2010 with a further term of 18 months expiring on 5 April 2012.

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applicant convicted of doing an act with intent to influence a witness - sentence manifestly excessive - Crimes Act 1900 s 323(a)

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED : MB v R [2007] NSWCCA 245

PARTIES: Michael Black (Applicant) The Crown

FILE NUMBER(S): CCA 2007/7075

COUNSEL: H Cox (Applicant) P Calvert (Crown)

SOLICITORS: Legal Aid Commission for NSW (Applicant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/41/0008

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 27 September 2007

IN THE COURT OF CRIMINAL APPEAL 2007/7075

McCLELLAN CJ at CL SIMPSON J LATHAM J

MONDAY, 22 DECEMBER 2008 BLACK, Michael v R Judgment 1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against the sentence imposed upon him in respect of one count of doing an act with intent to influence a witness contrary to s 323(a) Crimes Act 1900. The maximum penalty for the offence is imprisonment for seven years. The applicant was sentenced to a non-parole period of three years commencing on 6 January 2008 and expiring on 5 January 2011 with a balance of term of two years imprisonment commencing on 6 January 2011 and expiring on 5 January 2013. 2 The practical effect of his sentence was to add one year to the sentence which had already been imposed for offences of malicious wounding and aggravated car-jacking. It was the complainant, in the malicious wounding matter who the applicant attempted to influence when committing the present offence. 3 In this Court the Crown did not resist the applicant's submission that the sentence imposed for the attempt to influence offence was excessive and requires the intervention of this Court. It is accordingly necessary to determine the appropriate sentence and in particular having regard to matters of totality the period of full time custody which the applicant should serve before being released to parole.