Sharma v R [2017] NSWCCA 85

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sharma v R [2017] NSWCCA 85 Hearing dates: 31 March 2017 Decision date: 03 May 2017 Before: Beazley P at [1]; Walton J at [2]; R A Hulme J at [3] Decision: 1. Grant leave to appeal and allow the appeal against sentence. 2. Quash the sentence imposed in the District Court on 22 April 2016. 3. Sentence the applicant to an aggregate term of imprisonment for 7 years 4 months with a non-parole period of 5 years. The sentence will date from 24 July 2015. The non-parole period will expire on 23 July 2020 whereupon the applicant will become eligible for release on parole. Catchwords: CRIMINAL LAW – appeal against sentence – two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 – whether sentencing judge erred in assessing objective seriousness – where assessment was vague but not erroneous – limited significance of assault's relatively short duration – no error in failing to mention absent aggravating factors – error established as sentencing judge referred to the applicant offending whilst on conditional liberty in assessment of objective seriousness – consideration of submissions on manifest excess for re-exercise of sentencing discretion – appeal allowed Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 578A Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 9, 44(2B) Criminal Appeal Act 1912 (NSW) s 6(3) Cases Cited: Aldous v R [2012] NSWCCA 153; 227 A Crim R 184 Boney v R [2015] NSWCCA 291 Cowling v R [2015] NSWCCA 213 House v The King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 McCabe v R [2016] NSWCCA 7 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Daley [2010] NSWCCA 223 R v Gavel [2014] NSWCCA 56 R v Koloamatangi [2011] NSWCCA 288 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 The Queen v De Simoni [1981] HCA 31; 147 CLR 383 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Amit Sharma (Applicant) Regina (Respondent) Representation: Counsel: Ms H Cox (Applicant) Mr S Hughes (Crown)