AGF v R [2016] NSWCCA 236

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AGF v R [2016] NSWCCA 236 Hearing dates: 7 October 2016 Decision date: 21 October 2016 Before: Meagher JA at [1]; Harrison J at [2]; R A Hulme J at [3] Decision: 1. Time to file Notice of Application for Leave to Appeal extended to 1 June 2016. 2. Leave to appeal granted and appeal allowed. 3. Sentences imposed in the District Court on 6 November 2009 quashed and the following sentences imposed: Count 1 (2007/16340-036): imprisonment for a fixed term of 11 months commencing on 16 June 2008. Count 4 (2007/16340-038): imprisonment for a fixed term of imprisonment of 2 years 8 months commencing on 16 May 2009. Count 5 (2007/16340-005): imprisonment for a fixed term of 11 months commencing 16 May 2009. Counts 6 and 7 (2007/16340-039 & 040): on each, imprisonment for a fixed term of 2 years 8 months commencing 16 April 2010. Counts 8 and 9 (2007/16340-041 & 042): on each, imprisonment for a fixed term of 2 years 8 months commencing 16 March 2011. Count 10 (2007/16340-043): imprisonment for a fixed term of 3 years 7 months commencing 16 March 2011. Count 11 (2007/16340-016): imprisonment for a fixed term of 1 year 4 months commencing 16 February 2012. Count 13 (2007/16340-019) (and taking into account the Form 1 offence): imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 4 years 6 months. The sentence is to commence 16 December 2012. The non-parole period will expire on 15 June 2017 at which time the applicant will become eligible for release on parole. The total term will expire on 15 December 2021. Catchwords: CRIMINAL LAW – appeal against sentence – child sexual assault – significant delay – applicant sentenced on the basis that he had a prior conviction for child sexual assault – where prior conviction quashed on appeal after sentencing for present offences – prior conviction had no impact on sentence – judge not made aware of applicant's assistance to authorities – new evidence of assistance received – assistance worthy of reduction in sentence – applicant re-sentenced – appeal allowed Legislation Cited: Crimes Act 1900 (NSW) ss 61, 61M(1), 61O(1), 66C(2), 66D, 61J Crimes (Sentencing Procedure) Act 1999 (NSW) ss 23, 44 Criminal Code (Cth) s 474.19 Cases Cited: Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 Many v R (1990) 51 A Crim R 54 R v Cartwright (1989) 17 NSWLR 243 Category: Principal judgment Parties: AGF (Applicant) Regina (Respondent) Representation: Counsel: Mr P Boulten SC (Applicant) Ms B Baker (Crown)