RJA v R [2014] NSWCCA 89

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RJA v R [2014] NSWCCA 89 Hearing dates: 15 May 2014 Decision date: 15 May 2014 Before: Basten JA at [29]; R A Hulme J at [1]; Campbell J at [30] Decision: 1. Allow the appeal. 2. Quash the sentences imposed by the Court of Criminal Appeal on 10 June 2008. 3. Re-sentence the appellant as follows: Count 3 - sentenced to imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 1 year 6 months. The sentence will date from 18 August 2006. The non-parole period expired on 17 February 2011 and the total term expired on 17 August 2012. Count 4 - sentenced to imprisonment comprising a non-parole period of 7 years 6 months and a balance of the term of the sentence of 2 years 6 months. The sentence will date from 18 August 2007. The non-parole period will expire on 17 February 2015 and the total term will expire on 17 August 2017. Count 1 - sentenced to imprisonment comprising a non-parole period of 9 years and a balance of the term of the sentence of 4 years. The sentence will date from 18 August 2008. The appellant will become eligible for release on parole upon the expiration of the non-parole period on 17 August 2017. The total term will expire on 17 August 2021. Catchwords: CRIMINAL LAW - appeal against sentence - referral pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - standard-non parole period remains important guidepost where offence is in mid-range of objective seriousness - when not given determinative significance, lesser sentences warranted - appeal upheld and new sentences imposed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: AB v R [2013] NSWCCA 273 Dousha v R [2008] NSWCCA 263 Filippou v R [2013] NSWCCA 92 Koh v R [2013] NSWCCA 287 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Nguyen [2013] NSWCCA 195 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 R v Way [2004] NSWCCA 131; 60 NSWLR 168 RJA v R [2008] NSWCCA 137; 185 A Crim R 178 RS v R [2013] NSWCCA 227 Ryan v R [2001] HCA 21; 206 CLR 267 Category: Principal judgment Parties: RJA (Appellant) Regina (Respondent) Representation: Counsel: Mr I McLachlan (Appellant) Ms S Herbert (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2004/8249 Decision under appeal Jurisdiction: 9101 Date of Decision: 2006-08-18 00:00:00 Before: Finnane QC DCJ File Number(s): 04/31/0470