Sheen v R [2014] NSWCCA 42

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sheen v R [2014] NSWCCA 42 Hearing dates: 18 February 2014 Decision date: 04 April 2014 Before: Macfarlan JA at [1]; Garling J at [22]; RS Hulme AJ at [32] Decision: (1) The time for appeal in relation to Mr Sheen's conviction on the s 166 Certificate common assault charge is extended. (2) The appeal made pursuant to that grant of leave is allowed and that conviction quashed. (3) The application for leave to appeal against sentence is allowed but the appeal is dismissed. Catchwords: CRIMINAL LAW - conviction appeal - appellant inadvertently convicted of both offence of common assault and identical offence on a back up charge under Criminal Procedure Act 1986 (NSW), ss 165 to 169 - conviction on latter quashed

CRIMINAL LAW - sentence appeal - assessment of objective seriousness of offence - whether sentencing judge erred in characterising applicant's role in joint criminal enterprise - whether open to sentencing judge to conclude applicant was the instigator of the joint criminal enterprise - appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 61, 86 Criminal Procedure Act 1986 (NSW), ss 166, 167 Cases Cited: Lowe v The Queen [1984] HCA 46; 154 CLR 606 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Wright [2009] NSWCCA 3 Mercael v R [2010] NSWCCA 36 Michael v R [2014] NSWCCA 2 Mulato v R [2006] NSWCCA 282 Category: Principal judgment Parties: Rikki Sheen (Applicant) Regina (Respondent) Representation: Counsel: T Gartelmann (Applicant) S Dowling SC (Respondent) Solicitors: Matouk Joyner Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/19909 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-01-20 00:00:00 Before: Freeman ADCJ File Number(s): 2010/19909