R v MG [2016] NSWCCA 304

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v MG [2016] NSWCCA 304 Hearing dates: 1 December 2016 Decision date: 16 December 2016 Before: Meagher JA at [1]; Johnson J at [52]; Rothman J at [64] Decision: 1. Appeal allowed. 2. Vary the sentence imposed by North DCJ on 11 February 2015 by ordering that in respect of count 1 the respondent is sentenced to a further fixed term of imprisonment of six weeks to be served upon his apprehension and subsequent appearance before the court for sentencing following the issue of an arrest warrant in accordance with s 14A of the Criminal Appeal Act 1912 (NSW). 3. Order that a warrant for the arrest of the respondent be issued for failure to appear that warrant to be issued in accordance with s 14A of the Criminal Appeal Act 1912 (NSW). Catchwords: CRIMINAL LAW – Crown appeal against sentence – s 5DA Criminal Appeal Act 1912 (NSW) – where respondent undertook to provide assistance by giving evidence in criminal proceedings in accordance with statement provided to police and was allowed a 7.5% discount in sentence – where respondent's evidence at trial not in accordance with earlier statement – where material differences as to whole of relevant evidence – whether respondent failed wholly to fulfil his undertaking – whether discretion to vary sentence should be exercised Legislation Cited: Crimes Act 1900 (NSW), ss 21E, 349(1), 350 Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 Criminal Appeal Act 1912 (NSW), s 5DA, 11, 14A Criminal Appeal Rules, cl 20 Evidence Act 1995 (NSW), ss 4, 32(1), 38, 76, 91 Cases Cited: Dwayhi v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331 R v Bagnall and Russell (Court of Criminal Appeal (NSW), 10 June 1994, unrep) R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406 R v Dehghani; ex parte Director of Public Prosecutions (Cth) [2011] QCA 159; (2011) 1 QdR 339 R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232 R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 R v Isaac; Ex parte Transport Workers' Union (1985) 159 CLR 323; [1985] HCA 80 R v Hamzy [2016] NSWSC 1512 R v James; James v R [2014] NSWCCA 311 R v KS [2005] NSWCCA 87 R v O'Brien (Court of Criminal Appeal (NSW), 10 June 1993, unrep) R v Vo; R v Tran [2006] NSWCCA 165 R v Walters (1994) 33 NSWLR 612 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Re Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited v Australian Broadcasting Tribunal and Newcastle FM Pty Limited (1987) 16 FCR 465; [1987] FCA 301 Category: Principal judgment Parties: Regina (Appellant) MG (Respondent) Representation: Counsel: S Dowling SC (Appellant) D Dalton SC (Respondent)