R v James; James v R [2014] NSWCCA 311

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v James; James v R [2014] NSWCCA 311 Hearing dates: 3 December 2014 Decision date: 15 December 2014 Before: Basten JA at [1]; McCallum J at [17]; R A Hulme J at [62] Decision: Orders made 3 December 2014: (1) Dismiss the Director's appeal. (2) Grant leave to the offender to appeal and allow his appeal. (3) Quash the sentence passed at first instance and, in substitution therefor, sentence the offender to a term of imprisonment with a non-parole period of 12 months commencing on 19 November 2013 and expiring on 18 November 2014 and a balance of term of 6 months expiring on 18 May 2015. (4) Direct that the offender be released to parole immediately. Order made 15 December 2014: (5) Revoke the non-publication order made on 3 December 2014. Catchwords: CRIMINAL LAW - sentencing - Crown appeal - offender's sentence reduced for assistance to authorities including undertaking as to future assistance - appeal on ground of failure to fulfil the undertaking - dispute as to alleged failure - proper approach to determining that issue

CRIMINAL LAW - sentencing - application for leave to appeal against sentence by offender - judge nominated maximum penalty as starting point - no basis to support imposition of maximum penalty Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 50, 95, 350 Criminal Appeal Act 1912 (NSW), s 5DA Criminal Legislation (Amendment) Act 1992 (NSW), Sch 3 Judiciary Act 1903 (Cth), s 35A Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; 88 ALJR 372 Kentwell v R [2014] HCA 37; (2014) 313 ALR 451 at [43] R v Cartwright (1989) 17 NSWLR 243 R v Gallagher (1991) 23 NSWLR 220 R v Olbrich [1999] HCA 54; 199 CLR 270 Regina v O'Brien (Court of Criminal Appeal, 10 June 1993, unreported) Regina v Stavropoulos [2007] NSWCCA 333 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (appellant) Regina (respondent in offender's appeal) Dean Andrew James (respondent in Crown appeal; applicant in own appeal) Representation: Counsel: L. Brasch (Applicant) G. Rowling (Crown) Solicitors: P. Wiggins (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/165209 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-11-26 00:00:00 Before: Maiden SC DCJ File Number(s): 2013/165209