Elshani v R [2015] NSWCCA 254

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elshani v R [2015] NSWCCA 254 Hearing dates: 10 August 2015 Decision date: 19 October 2015 Before: Gleeson JA at [1] Adams J at [9] Beech-Jones J at [39] Decision: 1. Leave to appeal is granted.

2. The non-parole period is quashed and, in lieu thereof, a non-parole period is imposed of 3 years and 3 months commencing on 1 November 2012 and ending on 31 January 2016.

3. In accordance with s 16F of the Crimes Act 1914 (Cth) the appellant's solicitor is directed to explain to the appellant, in language likely to be readily understood by him, the purpose and consequences of fixing the non-parole period including, in particular, an explanation:

(a) that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and

(b) that, if a parole order is made, the order will be subject to conditions; and

(c) that the parole order may be amended or revoked; and

(d) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions. Catchwords: CRIMINAL LAW – appeal – sentencing – mistaken application of Crimes (Sentencing Procedure) Act 1999 (NSW) in sentencing for offence under s 302.3 of the Criminal Code Act 1995 (Cth) by primary judge – error in finding "special circumstances" and failing to explain sentence in accordance with s 16F(1) of the Crimes Act 1914 (Cth) indicative of mistaken application of NSW legislation