REGINA v DARBY [2011] NSWCCA 52

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: REGINA v DARBY [2011] NSWCCA 52 Hearing dates: 22 March 2011 Decision date: 01 April 2011 Before: McCLELLAN CJ at CL at 1 BLANCH J at 2 HOEBEN J at 3 Decision: Appeal dismissed Catchwords: CRIMINAL LAW - appeal against sentence - appeal by Crown - ss68A of the Crimes (Appeal and Review) Act 2001 - misunderstanding by sentencing judge of non-custodial and non-fulltime custodial sentence options - sentence passed shortly after commencement of Crimes (Sentencing Legislation) Amendment (Intensive Correction orders) Act 2010 - need to re-sentence - application of principles relevant to re-sentencing - rehabilitation prospects - finding by sentencing judge that respondent "at the crossroads" - matters to be taken into account when assessing objective seriousness of part played by respondent in the commission of the offence - imposition of same sentence as sentencing judge. Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Crimes (Sentencing legislation) Amendment (Intensive Correction Orders) Act 2010 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Cicekdag [2004] NSWCCA 357 R v Douar [2005] 159 A Crim R 154 Regina v Hamieh [2010] NSWCCA 189 R v Henry [1999] 46 NSWLR 346 R v JW [2010] NSWCCA 49 R v Osenkowski (1982) 30 SASR 212 at 212-213, (1982) 5 A Crim R 394 at 394 R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 Regina v Zamagias [2002] NSWCCA 17 Category: Principal judgment Parties: Regina - Appellant Kelly Anne Darby - Respondent Representation: Counsel: Mr P Ingram SC - Crown Ms R Burgess - Respondent Solicitors: S Kavanagh, Solicitor for Public Prosecutions - Appellant Crown SE O'Connor, Legal Aid Commission - Respondent File Number(s): 2009/326370 Decision under appeal Date of Decision: 2010-11-24 00:00:00 Before: Madgwick QC ADCJ File Number(s): 2009/326370