Kelloway v R [2016] NSWCCA 95

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kelloway v R [2016] NSWCCA 95 Hearing dates: 20 May 2016 Date of orders: 20 May 2016 Decision date: 20 May 2016 Before: Bathurst CJ at [1] Schmidt J at [2] Wilson J at [27] Decision: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The sentence is quashed. (4) The appellant is resentenced to a term of imprisonment of 2 years, commencing on 5 February 2015 and expiring on 4 February 2017, with a non-parole period of 16 months, commencing on 5 February 2015 and expiring on 4 June 2016. (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 4 June 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 – leave to appeal against sentence – special circumstances – whether lesser sentence warranted – leave granted – appeal upheld – sentence quashed – resentenced Legislation Cited: Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Baghdadi v R [2012] NSWCCA 212 Fitzpatrick v R [2010] NSWCCA 26 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Fidow [2004] NSWCCA 172 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 Category: Principal judgment Parties: Cheyne Kelloway (Applicant) Regina (Crown) Representation: Counsel: WJ Hunt (Applicant) P Ingram SC (Crown)