Herbert v R [2015] NSWCCA 172

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Herbert v R [2015] NSWCCA 172 Hearing dates: 29 June 2015 Decision date: 29 June 2015 Before: Hoeben CJ at CL at [1]; R A Hulme J at [2]; Campbell J at [61] Decision: 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentences imposed in the District Court on 18 April 2013 quashed. 4. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, impose an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years 3 months to date from 29 October 2011. The non-parole period will expire on 28 January 2018 at which time the applicant will become eligible for release on parole. Catchwords: CRIMINAL LAW – appeal against sentence – three offences of aggravated sexual intercourse without consent – whether sentencing judge erred in failing to allow separate discount for voluntary disclosure of guilt – consideration of "Ellis discount" principles – ground upheld – applicant resentenced Legislation Cited: Crimes Act 1900 (NSW) s 61J(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 23(3), 53A Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Ellis (1986) 6 NSWLR 603 R v Gorman [2002] NSWCCA 516; 137 A Crim R 326 R v Hasan [2005] NSWCCA 21 R v LG [2012] NSWCCA 249 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Windle v R [2012] NSWCCA 222 Zhang v R [2011] NSWCCA 233 Category: Principal judgment Parties: Joshua Herbert (Applicant) Regina (Respondent) Representation: Counsel: Mr E Ozen (Applicant) Ms N Williams (Crown)