MD v R [2015] NSWCCA 37

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MD v R [2015] NSWCCA 37 Hearing dates: 3 February 2015 Date of orders: 20 March 2015 Decision date: 20 March 2015 Before: Gleeson JA at [1]; Johnson J at [76]; Hall J at [77] Decision: 1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. The sentence imposed in the District Court on 12 September 2013 is quashed. 4. On Count 1 (the first s 66A(2) offence), the applicant is sentenced to imprisonment comprising a non-parole period of 6 years and 3 months, commencing on 11 June 2012 and expiring on 10 September 2018, with a balance of term of 2 years and 9 months expiring on 10 June 2021. 5. On Count 2 (the second s 66A(2) offence), the applicant is sentenced to imprisonment comprising a non-parole period of 6 years and 9 months, commencing on 11 December 2012 and expiring on 10 September 2019, with a balance of term of 3 years and expiring on 10 September 2022. The first date the applicant is eligible to be released on parole is on 11 September 2019. Catchwords: CRIMINAL LAW – appeals – sentencing – whether sentencing judge failed to give effect to finding of special circumstances – sentencing discretion miscarried – whether some other sentence warranted in law – whether finding of special circumstances should be made on resentencing Legislation Cited: Crimes Act 1900 (NSW) ss 61M(2), 66A(2) Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 218 Crimes (Sentencing Procedure) Act 1999 (NSW) s 32, s 44 Criminal Appeal Act 1912 (NSW) s 6(3) Cases Cited: AM v R [2012] NSWCCA 203; 225 A Crim R 481 Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Caristo v R [2011] NSWCCA 7 Collier v R [2012] NSWCCA 213 R v CMB [2014] NSWCCA 5 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 Fina'i v R [2006] NSWCCA 134 Gavel v R [2014] NSWCCA 56 Jinnette v R [2012] NSWCCA 217 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 Maglis v R [2010] NSWCCA 247 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Power v R [1974] HCA 26; 131 CLR 623 R v Cook [1999] NSWCCA 234 R v Cramp [2004] NSWCCA 264 R v Fidow [2004] NSWCCA 172 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Trad v R [2009] NSWCCA 56; 194 A Crim R 20 Category: Principal judgment Parties: MD (Applicant) Regina (Crown) Representation: Counsel: T Gartelmann (Applicant) J Pickering SC (Crown)