White v R [2016] NSWCCA 190

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: White v R [2016] NSWCCA 190 Hearing dates: 4 July 2016 Decision date: 24 August 2016 Before: Bathurst CJ at [1]; Basten JA at [10]; Simpson JA at [43] Decision: (1) The time in which to seek leave to appeal extended to 17 February 2016; (2) Leave to appeal against sentence granted; (3) Appeal allowed: the applicant be re-sentenced on the offence of armed robbery committed on 8 June 2013, taking into account the offence of armed robbery committed on 7 June 2013, to imprisonment made up of a non-parole period of 3 years and 6 months commencing on 19 June 2014 and expiring on 18 December 2017, with a balance of term of 2 years expiring on 18 December 2019. Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – robbery with offensive weapon – plea of guilty – further offence of robbery with offensive weapon taken into account on Form 1 – concession by defence counsel that offences committed "in company" – whether error in taking into account offences committed in company as an aggravating factor – Crimes (Sentencing Procedure) Act 1999 (NSW), 21(2)(e) – error established – whether failure to give effect to finding of special circumstances justifying departure from statutory ratio of non-parole period – no error established – whether sentence was manifestly excessive due to error in approach to totality principle and failure to take into account delay

CRIMINAL LAW – failure by defence counsel to raise arguments before sentencing judge – Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 – whether failure precludes intervention – justice demands intervention – leave to appeal granted – appeal allowed – applicant re-sentenced