Wilson v R [2017] NSWCCA 41

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wilson v R [2017] NSWCCA 41 Hearing dates: 16 March 2017 Date of orders: 16 March 2017 Decision date: 17 March 2017 Before: Hoeben CJ at CL at [1]; Garling J at [2]; Beech-Jones J at [3] Decision: (1) Leave to appeal be granted; (2) Appeal allowed; (3) Set aside the sentence imposed by the District Court on 15 September 2015; (4) In lieu thereof order that:

(a) The Applicant be sentenced to a term of imprisonment of 3 years commencing 15 September 2015 and expiring on 14 September 2018 with a non‑parole period of 18 months and two days commencing 15 September 2015 and expiring on 16 March 2017;

(b) Direct the Applicant be released on the expiry of his non‑parole period. Catchwords: SENTENCE APPEAL – indecent assault committed in 1982 – victim either 8 or 9 years old – indecent assault committed in 1985 on same victim included on "Form 1" – application of historical sentencing practices – fixing of non‑parole periods – sentencing judge incorrectly advised that historical practice was to fix parole period between one third and one half of total sentence – historical practice was to fix non parole period between one third and one half of total sentence – error established – Applicant resentenced. Legislation Cited: Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 AJB v Regina [2007] NSWCCA 51 Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Betts v The Queen [2016] HCA 25 Bradbery v Regina [2008] NSWCCA 93 Bugmy v The Queen [1990] HCA 18; 169 CLR 525 CPW v R [2009] 105 Denham v R [2016] NSWCCA 309 Griffiths v The Queen (1989) 167 CLR 372 Henderson v R [2016] NSWCCA 8 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 MPB v R [2013] NSWCCA 213 R v Blanco [1999] NSWCCA 121 R v Smith (1987) 44 SASR 587 Regina v Badanjak [2004] NSWCCA 395 Regina v Fidow [2004] NSWCCA 172 Regina v M A [2004] NSWCCA 92 Regina v MJR [2002] NSWCCA 129; 54 NSWLR 368 Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Category: Principal judgment Parties: Samuel James Wilson (Applicant) Regina (Crown) Representation: Counsel: R Burgess (Applicant) NL Williams (Crown)