R v Egan [2013] NSWCCA 196

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Egan [2013] NSWCCA 196 Hearing dates: 6 August 2013 Decision date: 23 August 2013 Before: Leeming JA at [1] R A Hulme J at [2] Button J at [103] Decision: Crown appeal allowed. Sentences imposed in the District Court quashed. Assault occasioning actual bodily harm (count 3): sentenced to imprisonment for 10 months with no non-parole period. The sentence is to date from 5 January 2013 and expire on 4 November 2013. Assault occasioning actual bodily harm (count 5A): sentenced to imprisonment for 1 year 9 months with no non-parole period. The sentence is to date from 5 January 2013 and expire on 4 October 2014. Sexual intercourse without consent (count 2): sentenced to imprisonment comprising a non-parole period of 2 years and a balance of the term of the sentence of 8 months. The sentence is to date from 5 September 2013. The non-parole period expires on 4 September 2015 and the total term expires on 4 May 2016. Do act with intent to pervert the course of justice (count 6): sentenced to imprisonment comprising a non-parole period of 1 year and a balance of the term of the sentence of 1 year and 6 months. The sentence is to date from 5 September 2014. The respondent is to be released on parole upon the expiration of the non-parole period on 4 September 2015. The total term of the sentence will expire on 4 March 2017. Catchwords: CRIMINAL LAW - Crown appeal - offences of assault, sexual assault and pervert course of justice - suspended sentence of 22 months imprisonment - sentence manifestly inadequate - relevance of comments preliminary to remarks on sentence - whether judge decided to suspend the sentences before determining their length - principles applicable where sentencing for multiple offences - totality CRIMINAL LAW - Crown appeal - errors in assessing impact of mental condition and objective seriousness of offences - error in assessing discount for utilitarian value of pleas of guilty - pleas entered after date allocated for commencement of trial - whether fact that delay partially explicable by charge negotiation warranted deviation from usual discount for plea of very limited utilitarian value Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Burnard v R [2009] NSWCCA 5; 193 A Crim R 23 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 Ghobrial v R [2012] NSWCCA 221 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Dib [2003] NSWCCA 117 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Pangallo (1991) 56 A Crim R 441 R v Ryan [2006] NSWCCA 394; 167 A Crim R 241 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v XX [2009] NSWCCA 115; 195 A Crim R 38 R v Zamagias [2002] NSWCCA 17 Ryan v The Queen (1967) 121 CLR 205 Siganto v The Queen (1998) 194 CLR 656 Tabuan v R [2013] NSWCCA 143 Category: Principal judgment Parties: Regina (Applicant) Zenas Luke Egan (Respondent) Representation: Counsel: Ms H Wilson (Crown) Ms B Rigg (Respondent) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2011/146070 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-01-21 00:00:00 Before: Maiden DCJ File Number(s): 2011/146070