Donaghey v R [2015] NSWCCA 119

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Donaghey v R [2015] NSWCCA 119 Hearing dates: 29 April 2015 Date of orders: 27 May 2015 Decision date: 27 May 2015 Before: Bathurst CJ at [1] Simpson J at [2] Bellew J at [3] Decision: Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Catchwords: CRIMINAL LAW – sentence – where sentencing judge stated the incorrect maximum penalty – error made out

CRIMINAL LAW – sentence – where the applicant was on parole at the time of offending – where the balance of the applicant's parole was revoked and the applicant was taken into custody following which he served the balance of his parole period – where issue arose on sentence as to the time to which any further sentence might be backdated – where a further issue arose in that context as to special circumstances – where sentencing judge made no reference to special circumstances – whether issue overlooked – error made out

CRIMINAL LAW – sentence – re-sentence – necessity for fresh exercise of the sentencing discretion taking into account all relevant factors – offence of supply a prohibited drug at a relatively low level – evidence of applicant having undertaken rehabilitative efforts in custody in terms of employment and courses of study – where evidence that applicant was no longer a user of any illicit drug – special circumstances made out – applicant re-sentenced Legislation Cited: Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Baghdadi v R [2012] NSWCCA 212 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Callaghan v R [2006] 160 A Crim R 145 Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947 R v Tuuta [2014] NSWCCA 40 Category: Principal judgment Parties: Andrew Michael Donaghey - Applicant Crown - Respondent Representation: Counsel: Mr D Barrow - Applicant Mr P Ingram – Respondent