Chen v R [2015] NSWCCA 277

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chen v R [2015] NSWCCA 277 Hearing dates: 21 October 2015 Decision date: 30 October 2015 Before: Hidden J at [1] Davies J at [2] Adamson J at [3] Decision: (1) Leave to appeal granted.

(2) Appeal dismissed.

(3) Remit the matter to the District Court to re-open proceedings to correct the sentencing error in the commencement date of the applicant's sentence by ordering that:

(a) the commencement date be changed from 10 July 2013 to 10 July 2014;

(b) the expiry date be changed from 9 July 2019 to 9 July 2020; and

(c) the date on which the applicant will be eligible for release on parole be changed from 9 January 2018 to 9 January 2019. Catchwords: CRIMINAL LAW – appeal against sentence - whether unjustifiable disparity in non-parole period imposed on applicant as compared with co-offender – whether principle of parity justified finding of special circumstances and departure from statutory ratio - differences in nature of offending and circumstances of each offender warranted variance in non-parole periods

PRACTICE AND PROCEDURE – correction of obvious error in sentence – incorrect commencement date – remitter to District Court for orders to be made Legislation Cited: Crimes Act 1900 (NSW), ss 192J, 192K, 193C, 255, 256 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 32, 35A, 43, 44 Criminal Appeal Act 1912 (NSW), s 12 Cases Cited: Edwards v R [2009] NSWCCA 199 Green v The Queen [2011] HCA 49 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Do [2005] NSWCCA 209 R v Swan [2006] NSWCCA 47 Tatana v R [2006] NSWCCA 398 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Wei Zhong Chen (Applicant) Regina (Respondent) Representation: Counsel: P Lowe (Applicant) M Cinque SC (Respondent/Crown)