Mooney v R [2016] NSWCCA 303

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mooney v R [2016] NSWCCA 303 Hearing dates: 15 November 2016 Decision date: 14 December 2016 Before: Ward JA at [1] Campbell J at [2] N Adams J at [3] Decision: (1) Grant leave to appeal. (2) Set aside the sentence imposed by English DCJ on 18 September 2015 in relation to Sequence 3 and, in lieu, substitute a fixed term of imprisonment for six months to commence on 18 September 2015 and to expire on 17 March 2016. (3) Vary the commencement date of the sentence imposed by English DCJ on 18 September 2015 in relation to Sequence 1 to 18 February 2016. That non-parole period is now due to expire on 17 February 2017. (4) Vary the commencement date of the sentence imposed by English DCJ on 18 September 2015 in relation to Sequence 2 to 18 November 2015. The non-parole period expired on 17 November 2016. (5) The first date on which the applicant will be eligible to be released on parole is 17 February 2017. Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – where sentencing judge mistook maximum penalty for offence of cultivating a prohibited plant – material error – applicant re-sentenced and commencement dates adjusted Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 23(1), 32, 59(1) Criminal Appeal Act (NSW), s 6(3) Drug (Misuse and Trafficking) Act 1985 (NSW), ss 23(1), 25(1) Cases Cited: Andreata v R [2015] NSWCCA 239 Donaghey v R [2015] NSWCCA 119 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Baxter (2007) 173 A Crim R 284; [2007] NSWCCA 237 Category: Principal judgment Parties: Shane Raymond Mooney (Applicant) Regina (Respondent) Representation: Counsel: Mr G Scragg (Applicant) Ms S Dowling SC (Respondent)