AG v R [2013] NSWCCA 264

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AG v R [2013] NSWCCA 264 Hearing dates: 16 October 2013 Decision date: 14 November 2013 Before: Hoeben CJ at CL at [1] Johnson J at [2] Bellew J at [3] Decision: (i)the application for an extension of time in which to seek leave to appeal against sentence is granted; (ii)leave to appeal against sentence is granted; (iii)the appeal is allowed; (iv)the sentence imposed in respect of count 1 is quashed, and in lieu thereof a fixed term of imprisonment of 5 years, commencing on 17 October 2008, and expiring on 16 October 2013, is imposed; (v)the sentence imposed in respect of count 2 is quashed, and in lieu thereof a non-parole period of 6 years imprisonment commencing on 17 October 2010 and expiring on 16 October 2016, with an additional term of 3 years expiring on 16 October 2019, is imposed; (vi)the sentence imposed in respect of count 3 is quashed, and in lieu thereof a non- parole period of 4 years imprisonment commencing on 17 October 2009, and expiring on 16 October 2013, with an additional term of 12 months expiring on 16 October 2014 is imposed; (vii)the applicant will be eligible for release on parole on 16 October 2016, and his aggregate sentence will expire on 16 October 2019. Catchwords: CRIMINAL LAW - appeal - application for extension of time - so called Muldrock error - no error made out

CRIMINAL LAW - appeal - application for extension of time - where applicant pleaded guilty to sexual offending committed on daughters - where applicant mentally retarded - where error on the part of the sentencing judge in application of principles pertaining to mentally ill offenders, both in terms of reduction in moral culpability and lessened significance of general deterrence - where delay in bringing appeal explained partly on the basis of erroneous advice having been given to the applicant following sentence - extension of time granted - leave to appeal granted - appeal allowed - sentences quashed - applicant re-sentenced Legislation Cited: Crimes Act 1900 NSW Crimes (Sentencing Procedure) Act Cases Cited: Abdul v R [2013] NSWCCA 247 Aldous v R [2012] NSWCCA 153 Aslett v R [2012] NSWCCA 235 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Essex v R [2013] NSWCCA 11 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 R V Mooney (CA (Vic) 21 June 1978 unreported Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460 Category: Principal judgment Parties: AG - Applicant Regina - Crown Representation: Ms B Rigg - Applicant Ms T Smith - Crown Legal Aid New South Wales - Applicant S Kavanagh – Solicitor for Public Prosecutions - Crown File Number(s): FILLIN "FILE NO"\d "" \* MERGEFORMAT 2009 / 2372007 Decision under appeal Date of Decision: 2009-06-12 00:00:00 Before: Frearson DCJ