Dagher v R [2017] NSWCCA 258

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dagher v R [2017] NSWCCA 258 Hearing dates: 11 October 2017 Decision date: 27 October 2017 Before: Leeming JA at [1]; Johnson J at [2]; Adamson J at [3] Decision: (1) Leave to appeal granted.

(2) Appeal allowed.

(3) In lieu of the sentence imposed by Delaney ADCJ on 22 May 2017, impose a sentence of 2 years' imprisonment commencing on 22 May 2017.

(4) Direct that the applicant be released after serving 1 year, on 21 May 2018 on recognisance to be of good behaviour for 1 year, upon her giving self-surety of $500.

(5) Note, pursuant to s 16AC of the Crimes Act 2014 (Cth), that the sentence that would have been imposed but for the applicant's promise of future assistance, would have been a sentence of 2 years and 4 months' imprisonment with a direction that the applicant be released on 21 July 2018 on recognisance after serving 1 year and 2 months' imprisonment, upon her giving self-surety of $500 to be of good behaviour for 1 year and 2 months. Catchwords: CRIMINAL LAW – sentencing – effect of failure to comply with s 16AC of the Crimes Act 1914 (Cth) – failure to specify what sentence would have been imposed but for promise of future assistance – need for re-sentence even though new sentence neither lesser nor greater than sentence imposed in order to comply with s 16AC

ADVOCACY – importance of providing sentencing judge with assistance as to applicable legislative provisions in order to ensure that sentence imposed complies with the law Legislation Cited: Crimes Act 1914 (Cth), ss 16A,16AC, 17A, 20 Criminal Code Act 1995 (Cth), s 134.2 Criminal Appeal Act 1912 (NSW), ss 6, 12 Crimes (Sentencing Procedure) Act 1999 (NSW) Judiciary Act 1903 (Cth), s 68 Legal Profession Uniform Conduct (Barristers) Rules 2015, r 95 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, r 29 Cases Cited: Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 R v Annecchini (Court of Criminal Appeal (NSW), Gleeson CJ, Allen and James JJ, 24 April 1996, unrep) R v Gallagher (1991) 23 NSWLR 220 R v Hawkins (1989) 45 A Crim R 430 R v Whitney (Court of Criminal Appeal (NSW), Gleeson CJ, Cole JA and Newman J, 6 November 1997, unrep) Category: Principal judgment Parties: Farah Dagher (Applicant) Regina (Respondent) Representation: Counsel: P Lange (Applicant) J Paingakulam/M Baroni (Respondent)