Westaway v R [2016] NSWCCA 281

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Westaway v R [2016] NSWCCA 281 Hearing dates: 2 November 2016 Decision date: 09 December 2016 Before: Macfarlan JA at [1]; R A Hulme J at [28]; Bellew J at [29] Decision: (1) Grant the applicant leave to appeal. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – police pursuit, resist police, drug and damage property offences – aggregate sentence of 4 years imprisonment (after 25% early guilty plea discount) not manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A Cases Cited: JM v R [2014] NSWCCA 297 Kerr v R [2016] NSWCCA 218 Category: Principal judgment Parties: John Warren Westaway (Applicant) Regina (Respondent) Representation: Counsel: S Fraser (Applicant) D T Kell SC / M Pulsford (Respondent)

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/344454 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2015] NSWDC 97 Date of Decision: 19 June 2015 Before: Mahony SC DCJ File Number(s): 2014/344454

Judgment 1. MACFARLAN JA: On 16 June 2015 the applicant, Mr John Westaway, appeared in the District Court for sentencing for four offences, to which he had earlier pleaded guilty, arising out of incidents that occurred on 21 November 2014. 2. On 19 June 2015 the sentencing judge imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) comprising a non-parole period of 2 years 3 months to commence on 19 April 2015 with a balance of term of 1 year 9 months, amounting to a total term of imprisonment of 4 years. 3. The offences, specified maximum penalties and the indicative sentences that his Honour identified pursuant to s 53A(2)(b) of that Act were as follows: Count Offence Max Penalty Indicative Sentence Drive vehicle in Police Pursuit – not stop and drive in manner dangerous to others 3 years imprisonment 2 years 1 s.51B(1) Crimes Act 1900 Disqual (auto) 5 yrs 5 years Disqualification 2 Resist officer in the execution of duty 5 years 9 months s.58 Crimes Act 1900 imprisonment Imprisonment Supply a Prohibited Drug 15 years 3 (Methylamphetamine) imprisonment 18 months s.25(1) Drug Misuse and Trafficking Act 1985 and/or fine Imprisonment $220,000 4 Damage property 5 years 6 months s.195(1)(a) Crimes Act 1900 imprisonment imprisonment