Avery v R [2015] NSWCCA 50

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Avery v R [2015] NSWCCA 50 Hearing dates: 23 March 2015 Date of orders: 02 April 2015 Decision date: 02 April 2015 Before: R A Hulme J at [1] Davies J at [2] Bellew J at [3] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW – Appeal – Applicant sentenced for two separate offences of aggravated break and enter together with an offence of being carried in conveyance taken without the owner's consent – Whether sentencing judge made erroneous factual findings regarding the applicant's participation in joint criminal enterprise – Whether sentencing judge erred in failing to have regard to evidence of the applicant's intoxication – Whether sentencing judge gave proper effect to finding of special circumstances – Whether the discount for assistance which was applied by the sentencing judge was appropriate – Whether sentence manifestly excessive – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Procedure – Where submissions in support of grounds of appeal were not put to the sentencing judge – Party to be bound by the conduct of the case at first instance Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Hutchinson v R [2014] NSWCCA 371 Kendall v R [2015] NSWCCA 13 LB v R [2013] NSWCCA 70 R v Cahyadi [2007] NSWCCA 1; (2007] 168 A Crim R 41 R v Ellis (1986) 6 NSWLR 603 R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 R v Fernando (1992) 76 A Crim R 58 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 SL v R [2015] NSWCCA 35 SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Daniel Avery - Applicant Representation: Counsel: Mr R Wilson - Applicant Ms N Williams - Respondent