Warwick v R [2016] NSWCCA 183

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Warwick v R [2016] NSWCCA 183 Hearing dates: 10 August 2016 Decision date: 22 August 2016 Before: Payne JA at [1]; R A Hulme J at [2]; Adamson J at [3] Decision: (1) Grant leave to the applicant to appeal against the sentence imposed on him on 4 September 2015.

(2) Allow the appeal.

(3) Quash the sentence imposed on the applicant by the District Court on 4 September 2015 and instead impose in substitution a sentence of two years commencing on 3 September 2015 and expiring on 2 September 2017, with a non-parole period of one year commencing on 3 September 2015 and expiring on 2 September 2016.

(4) The applicant is to be released on parole on 2 September 2016, being the end of the non-parole period. Parole is to be subject to the standard conditions prescribed under the Crimes (Administration of Sentences) Act 1999 including as to supervision by the Probation and Parole Service. Catchwords: SENTENCE APPEAL – totality principle – applicant sentenced for break and enter offence that occurred close in time to a similar offence for which he had served a period of imprisonment and which had expired – significant delay between commission of offence and sentencing – totality principle not raised at sentencing hearing – sentencing judge was obliged to take previous sentence into account in sentencing as part of the instinctive synthesis – failure to take totality principle into account resulted in sentencing discretion miscarrying – appeal allowed – applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW), ss 105A, 112 Crimes (Administration of Sentences) Act 1999 (NSW) Cases Cited: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v Todd [1982] 2 NSWLR 517 Wong v The Queen [2001] HCA 64; 207 CLR 584 Wu v R [2011] NSWCCA 102; 211 A Crim R 88 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Nathan Thomas Warwick (Applicant) Regina (Respondent Crown) Representation: Counsel: S Howell (Applicant) N Adams (Crown)