Brown v R, R v Brown [2010] NSWCCA 73

New South Wales Court of Criminal Appeal

CITATION: Brown v R, R v Brown [2010] NSWCCA 73

HEARING DATE(S): 08/09 2009

JUDGMENT DATE: 3 May 2010

JUDGMENT OF: Macfarlan JA at 1; Howie J at 2; Hislop J at 79

1. Leave to the respondent to appeal against his sentence is refused. 2. The Crown appeal is allowed and the sentences imposed in the District Court are quashed. 3. In lieu the respondent is sentenced DECISION: (a) for the offence of accessory before the fact to maliciously damage property by fire to a sentence consisting of non-parole period of 21 months and balance of term of 7 months that sentence to commence on 15 June 2009. The non-parole period is to expire on 14 March 2011 the date upon which the respondent would be released to parole but for the sentence for the conspiracy offence (b) for the offence of conspiracy to cheat and defraud and taking into account the Form 1 matters to a term of imprisonment made up of a non-parole period of 2 years 4 months to date from 15 June 2010 with a balance of term of 1 year 2 months. The non-parole period expires on 14 October 2012 the date upon which the respondent is eligible to be released to parole.

CATCHWORDS: CRIMINAL LAW - Sentence - offences of fraud and accessory before the fact to arson - application for leave to appeal and Crown appeal - whether sentences manifestly excessive in light of assistance by applicant - whether sentences manifestly inadequate - whether error in determining penalty for common law offence - whether error in making sentences concurrent - whether insufficient regard to matters on Form 1 - effect of delay in determining the Crown appeal

Crimes Act 1900 - ss 178BA 197(1)(b) 300 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 21A(2)(m) 23(3) Crimes (Appeal and Review) Act 2001 - s 68A Criminal Appeal Act 1912 - s 5D