HEI HEI, Marcus Joseph v R; R v Marcus Joseph HEI HEI [2009] NSWCCA 87

New South Wales Court of Criminal Appeal

CITATION: HEI HEI, Marcus Joseph v R; R v Marcus Joseph HEI HEI [2009] NSWCCA 87

HEARING DATE(S): 23 March 2009

JUDGMENT DATE: 2 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Rothman J at 3

(1) Leave to appeal be granted;

DECISION: (2) The appeal against sentence by Mr Hei Hei be dismissed;

(3) The appeal by the Crown against the order of his Honour Judge Bennett DCJ, disqualifying Mr Hei Hei from driving, be allowed and in lieu thereof the following order issue: "(i) Pursuant to the terms of section 188(2)(d)(ii) of the Road Transport (General) Act 2005, Mr Hei Hei be disqualified from driving for a longer period than 3 years, being for the period concluding 19 February 2014."

CATCHWORDS: CRIMINAL LAW – sentencing – appeal – aggravating feature – inherent in elements of crime – no lesser sentence warranted – no manifest excess – disqualification from driving – term fixed by judge identical to automatic disqualification period but from future date – power to fix shorter or longer period – original intent given effect – longer period fixed expiring 3 years after conclusion of non-parole period - TRAFFIC LAW – offence – disqualification – method of fixing non-automatic period of disqualification – need to have shorter or longer period – method corrected

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Road Transport (General) Act 2005

CATEGORY: Principal judgment

Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 Elyard v R [2006] NSWCCA 43 Ex parte Thomas; Re Arnold (1966) 84 WN (Part 1) NSW 493; [1966] 2 NSWR 197 Gardner v R [2003] NSWCCA 199 Kutchera v R [2007] NSWCCA 121 R v Abboud [2005] NSWCCA 251 R v Boulghourgian [2001] NSWCCA 460; (2001) 125 A Crim R 540 CASES CITED : R v Finnie (No 2) [2004] NSWCCA 150 R v McMillan [2005] NSWCCA 28 R v Moore; Ex parte Graham [1977] HCA 20; (1977) 138 CLR 164 R v Presard [2004] 147 A Crim R 385 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Stewart [2005] NSWCCA 290 R v Wall [2002] NSWCCA 42 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168