Andrews v Regina [2011] NSWCCA 24

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Andrews v Regina [2011] NSWCCA 24 Hearing dates: 23 August 2010 Decision date: 28 February 2011 Before: Beazley JA James J Hall J Decision: (1) The application for leave to appeal is granted. (2) The applicant is to be re-sentenced to a non-parole period of 2 years and 6 months commencing 27 August 2009 and to expire on 26 February 2012 with a parole period of 2 years and 6 months to expire on 26 August 2014. (3) The appeal otherwise be dismissed. Catchwords: SENTENCE APPEAL - Break and enter in circumstances of aggravation - intellectual disability and poor impulse control - relevant to objective seriousness but not expressly taken into account in determining the objective seriousness of the offence - considered in context of subjective factors - sentencing within reasonable range - leave granted to account for pre-sentence custody - pre-sentence custody to be taken into account - pre-sentence custody referrable solely to subject offence - five days pre-sentence should have been taken into account - subject to that matter appeal against sentence dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Regina v Newman & Simpson (2004) 145 A Crim R 361 Regina v Way (2004) 60 NSWLR 168 Category: Principal judgment Parties: SHANE ANDREWS v REGINA Representation: Counsel: C: N Gouda A: G Brady/M McMahon Solicitors: C: S Kavanagh A: S O'Connor File Number(s): 2008/1402 Decision under appeal Date of Decision: 2009-09-01 00:00:00 Before: Syme DCJ File Number(s): 2008/1402