Hamilton v R [2016] NSWCCA 59

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hamilton v R [2016] NSWCCA 59 Hearing dates: 20 April 2016 Decision date: 20 April 2016 Before: Hoeben CJ at CL at [1] Harrison J at [2] Schmidt J at [3] Decision: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The sentence is quashed. (4) The appellant is resentenced to a total term of 34 months imprisonment commencing on 21 October 2014, with a non parole period of 18 months expiring on 20 April 2016 and a balance of term of 16 months expiring on 20 August 2017. (5) Under s 50(1) of the Crimes (Sentencing Procedure) Act the applicant be released on parole at the expiry of the non-parole period on 20 April 2016. (6) The applicant's parole be supervised and that he comply with all reasonable directions of the Department of Corrective Services relating to his ongoing treatment and counselling for substance abuse. Catchwords: CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in not backdating or otherwise taking into account applicant's pre-trial custody – whether sentence imposed in respect of the s 112(2) offence resulted in miscarriage of justice – appeal upheld – sentence quashed – resentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193 Kaminic v R [2014] NSWCCA 116 Kentwell v R (2014) 252 CLR 601 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Markarian v R [2005] HCA 25; (2006) 228 CLR 357 R v Birks (1990) 19 NSWLR 677 R v Newman & Simpson [2005] NSWCCA 102; (2004) 145 A Crim R 361 Category: Principal judgment Parties: Barry Keith Hamilton (Applicant) Regina (Respondent) Representation: Counsel: Ms K Shead and Ms B Baker (Applicant) Mr H Baker (Respondent)