Lewis v R [2011] NSWCCA 206

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lewis v R [2011] NSWCCA 206 Hearing dates: 17 August 2011 Decision date: 08 September 2011 Before: Whealy JA at 1 Latham J at 2 Harrison J at 3 Decision: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentences imposed by Freeman DCJ on 19 August 2010. 4. In lieu thereof the applicant is sentenced as follows: Count 1 : to a term of imprisonment of 2 years and 6 months commencing on 4 February 2009 and expiring on 3 August 2011 with a non-parole period of 22 months commencing on 4 February 2009 and expiring on 3 December 2010 and a balance of term of 8 months commencing on 4 December 2010 and expiring on 3 August 2011. Count 2 (taking into account items on the form 1): to a term of imprisonment of 1 year and 8 months commencing on 4 August 2010 and expiring on 3 April 2012 with a non-parole period of 1 year and 3 months commencing on 4 August 2010 and expiring on 3 November 2011 with a balance of term of 5 months commencing on 4 November 2011 and expiring on 3 April 2012. Count 3 (taking into account the item on the form 1): to a fixed term of imprisonment of 12 months commencing on 4 April 2012 and expiring on 3 April 2013. Count 4 : to a term of imprisonment of 5 years commencing on 4 January 2011 and expiring on 3 January 2016 with a non-parole period of 1 year and 8 months commencing on 4 January 2011 and expiring on 3 September 2012 with a balance of term of 3 years and 4 months commencing on 4 September 2012 and expiring on 3 January 2016. S 166 matters : in each case to a fixed term of imprisonment of 6 months commencing on 4 February 2009 and expiring on 3 August 2009. Catchwords: CRIMINAL LAW - appeal against sentence - whether sentencing judge failed to have proper regard to the sentencing principles relating to mental illness and failed to give proper weight to the mental illness of the applicant when sentencing him - no error in the way the sentencing judge took account of the applicant's mental condition CRIMINAL LAW - appeal against sentence - where sentencing judge failed to have proper regard to the principle of totality - whether sentencing judge failed to consider that the steal from dwelling offence could have been dealt with in the Local Court - where sentence was manifestly excessive - miscarriage of the exercise of the sentencing discretion - overall sentence reduced from 8 years and 10 months to 6 years and 11 months Legislation Cited: Criminal Procedure Act 1986 Cases Cited: Bonwick v R [2010] NSWCCA 177 Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371 Dagdanasar v R [2010] NSWCCA 310 McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 R v Bus (NSWCCA, 8 March 1996 - unreported) R v Champion (1992) 64 A Crim R 244 R v Clements (1993) 68 A Crim R 167 R v Depoma [2003] NSWCCA 382 R v El Masri [2005] NSWCCA 167 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA R v Palmer [2005] NSWCCA 349 R v Rossi (CCA (SA), 20 April 1988, unreported) R v Wheeler [2000] NSWCCA 34 R v XX [2009] NSWCCA 115 Strickland v R; O'Connor v R [2011] NSWCCA 166 Zaharos v R [2008] NSWCCA 336 Category: Principal judgment Parties: Stewart John Lewis (Applicant) Crown (Respondent) Representation: A W Hunt (Applicant) N Noman (Respondent) B Sandland (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/243069 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-08-19 00:00:00 Before: Freeman DCJ File Number(s): 2009/217585