Brennan v R [2018] NSWCCA 22

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brennan v R [2018] NSWCCA 22 Hearing dates: 16 November 2017 Decision date: 23 February 2018 Before: Bathurst CJ at [1] Hoeben CJ at CL at [6] Button J at [7] Decision: (1) Leave to appeal granted. (2) Appeal against sentence allowed. (3) The indicative sentences provided by Judge Barnett in the Drug Court on 9 December 2016 are confirmed. (4) The aggregate sentence imposed by Judge Barnett in the Drug Court on 9 December 2016 is quashed. (5) The applicant is sentenced to an aggregate head sentence of three years six months expiring on 21 May 2019, with an aggregate non-parole period of two years seven months 15 days, each to date from 22 November 2015. (6) The first date upon which the applicant is eligible for possible release to parole is 6 July 2018. Catchwords: CRIMINAL LAW – appeal against sentence – aggregate sentence imposed in the Drug Court – aggregate non-parole period significantly greater than 75% of the aggregate head sentence – prosecutor did not seek that outcome, and sentencing judge did not foreshadow it – defence advocate sought a finding of special circumstances, and therefore an aggregate non-parole period that was less than 75% of the aggregate head sentence – whether incumbent upon sentencing judge to find special circumstances before imposing such a sentence – whether sentencing judge gave reasons for imposing such a sentence – whether in all the circumstances the applicant was denied procedural fairness by the imposition of such a sentence – appeal against sentence upheld Legislation Cited: Crime Sentencing Procedure Act 1999 (NSW), ss 44(2), 44(2A), 44(2B) Drug Court Act 1998 (NSW), s 7A Cases Cited: Baroudi v R [2007] NSWCCA 48 Barrett v R [2011] NSWCCA 213 Button v R [2010] NSWCCA 264 Connelly v R [2012] NSWCCA 114 Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236; 189 A Crim R 178 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Maglovski v R [2014] NSWCCA 238 Milsom v R [2014] NSWCCA 142 Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424 Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 Parker v DPP (1992) 28 NSWLR 282 R v Fidow [2004] NSWCCA 172 R v Wakefield [2010] NSWCCA 12 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318 Veen (No.2) [1988] HCA 14 Weir v R [2011] NSWCCA 123 Zreika v R [2012] NSWCCA 44 Texts Cited: Judicial Commission of New South Wales, "Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999" (2013) 42 Sentencing Trends & Issues Category: Principal judgment Parties: Shane McLeod Brennan (Applicant) Regina (Respondent) Representation: Counsel: S Kluss (Applicant) B Baker (Respondent)