Potts v R [2017] NSWCCA 10

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Potts v R [2017] NSWCCA 10 Hearing dates: 2 February 2017 Decision date: 15 February 2017 Before: Basten JA at [1]; Johnson J at [8]; Button J at [34] Decision: (1) Leave to appeal granted.

(2) Appeal against sentence allowed.

(3) The sentence imposed by Judge Colefax SC upon the applicant on 3 December 2014 is quashed.

(4) In its place, the applicant is sentenced to a non-parole period of 2 years and 6 months, to date from 24 April 2014, and which expired on 23 October 2016, with a parole period of 10 months to expire on 23 August 2017. Catchwords: CRIMINAL LAW – appeal against sentence – erroneous reference to standard non-parole period when sentencing for attempted aggravated break, enter and steal – appeal allowed – offender re-sentenced

CRIMINAL LAW – appeal against sentence – finding of "special circumstances" – variation of period of mandatory custody when sentences accumulated – whether appropriate on re-sentence where non-parole period has already expired – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 Legislation Cited: Crimes Act 1900 (NSW), ss 105A(1)(b), 112(2), 344A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, Div 1A Criminal Appeal Act 1912 (NSW), s 6(3) Cases Cited: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 D A C v R [2006] NSWCCA 265 Jinnette v R [2012] NSWCCA 217 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R [2016] NSWCCA 255 McGrath v R (2010) 199 A Crim R 527; [2010] NSWCCA 48 R v Doorey [2000] NSWCCA 456 R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130 R v Maher [2004] NSWCCA 177 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3 Category: Principal judgment Parties: Jason Potts (Applicant) Regina (Respondent) Representation: Counsel: A Francis (Applicant) N Williams (Respondent)