SMITH James Duncan v R [2011] NSWCCA 163

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SMITH James Duncan v R [2011] NSWCCA 163 Hearing dates: 10 February 2011 Decision date: 03 August 2011 Before: GILES JA [1] RS HULME J [4] ADAMS J [72] Decision: (i) Grant leave to appeal; (ii) Allow the appeal; (iii) Quash the sentences imposed on the Applicant by Cogswell DCJ on 28 August 2009. (iv) In respect of count 1, sentence the Applicant to imprisonment for a fixed term of 2 years commencing on 31 August 2007; (v) In respect of count 2, sentence the Applicant to imprisonment for a fixed term of 3 years commencing on 31 August 2007; (vi) In respect of count 3, sentence the Applicant to imprisonment for a fixed term of 1 year commencing on 31 August 2010; (vii) In respect of count 4, sentence the Applicant to imprisonment for a fixed term of 1 year and 6 months commencing on 31 August 2010; (viii) In respect of count 5, sentence the Applicant to imprisonment for a fixed term of 3 years commencing on 31 August 2010; (ix) In respect of count 6, sentence the Applicant to imprisonment for a fixed term of 6 months commencing on 31 August 2010; (x) In respect of count 7, sentence the Applicant to imprisonment for a non-parole period of 2 years and 10 months commencing on 30 April 2012, together with a balance of term of 2 years and 6 months commencing on 28 February 2015; (xi) In respect of count 8, sentence the Applicant to imprisonment for a non-parole period of 9 months commencing on 31 August 2013 together with a balance of term of 3 months commencing on 31 May 2014; (xii) In respect of count 9, sentence the Applicant to imprisonment for a non-parole period of 6 months commencing on 31 August 2013 together with a balance of term of 2 months commencing on 28 February 2014. (xiii) Record as the date upon which it appears to the Court that the Applicant shall become eligible for parole, 28 February 2015. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Way (2004) 60 NSWLR 168 Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565 R v Van Rysewyk [2008] NSWCCA 130 Mulato v R [2006] NSWCCA 282 R v King [2009] NSWCCA 117 Hili and Jones v The Queen [2010] HCA 45, (2010) 85 ALJR 195 R v Slack [2004] NSWCCA 128 Rolfe v The Queen [2007] NSWCCA 155, 173 A Crim R 168 R v PGM [2008] NSWCCA 172 RWB v R [2010] NSWCCA 147 BT v R [2010] NSWCCA 267 Category: Principal judgment Parties: James Duncan SMITH Regina Representation: Counsel: J Manuell SC V Lydiard Solicitors: Legal Aid Commission Solicitor for Public Prosecutions File Number(s): 2007/11356 Decision under appeal Date of Decision: 2009-08-28 00:00:00 Before: Cogswell DCJ