R v AB (No. 2) [2011] NSWCCA 256

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v AB (No. 2) [2011] NSWCCA 256 Hearing dates: On written submissions Decision date: 02 December 2011 Before: Bathurst CJ at 1 Hoeben J at 2 Johnson J at 3 Decision: 1. Pursuant to Rule 50C Criminal Appeal Rules , orders made by the Court on 14 October 2011 are set aside. 2. Crown appeal allowed. 3. Sentences imposed in the District Court on 9 March 2011 with respect to the first, second, third and fourth counts are quashed. 4. On the first count, the Respondent is sentenced to a fixed term of imprisonment of three months commencing on 28 May 2010 and expiring on 27 August 2010. 5. On the second count, the Respondent is sentenced to a fixed term of imprisonment of 18 months commencing on 28 June 2010 and expiring on 27 December 2011. 6. On the third count, the Respondent is sentenced to a fixed term of imprisonment of two years commencing on 28 November 2011 and expiring on 27 November 2013. 7. On the fourth count, the Respondent is sentenced to imprisonment for three years commencing on 28 October 2013 and expiring on 27 October 2016, with that sentence comprising a non-parole period of one year and four months commencing on 28 October 2013 and expiring on 27 February 2015 and a balance of term of one year and eight months commencing on 28 February 2015 and expiring on 27 October 2016. 8. The sentence imposed in the District Court on 9 March 2011 for the offence of driving whilst disqualified, pursuant to a certificate under s.166 Criminal Procedure Act 1986 is confirmed. 9. The orders for disqualification made in the District Court on 9 March 2011 are confirmed. 10. Under s.50 Crimes (Sentencing Procedure) Act 1999, it is directed that the Respondent be released on parole on 28 February 2015. Catchwords: CRIMINAL LAW - Crown appeal - appeal allowed and Respondent resentenced - aggregate sentencing provisions utilised - aggregate sentencing provisions not available given timing of pleas of guilty - further slip in calculation of sentences - application under Rule 50C Criminal Appeal Rules - misapprehension of law materially affecting appeal judgment - order made under Rule 50C - Respondent resentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment Act 2010 Criminal Procedure Act 1986 Criminal Appeal Rules Cases Cited: R v AB [2011] NSWCCA 229 R v Green and Quinn [2011] NSWCCA 71