Russell v R [2018] NSWCCA 115

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Russell v R [2018] NSWCCA 115 Hearing dates: 30 May 2018 Decision date: 30 May 2018 Before: Payne JA at [1] Johnson J at [5] Adamson at [6] Decision: 1. Leave to appeal in respect of Ground 2 granted.

2. Appeal allowed.

3. Sentences imposed by McLennan DCJ on 3 October 2017 quashed.

4. On each count, fix an aggregate sentence of 2 years 11 months to commence on 23 June 2016. Fix a non-parole period under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) of 1 year 11 months and 6 days expiring on 29 May 2018.

5. Note that the effect of s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) is that the sentence imposed is taken to be subject to a parole order (being a statutory parole order) directing the release of the appellant. Accordingly, the effect of the statute is that the appellant is to be released to parole forthwith. Catchwords: CRIMES – sentencing – sentencing judge's remarks and sentences irreconcilable – sentences set aside – on re-sentence evidence adduced that applicant has very short life expectancy due to terminal liver cancer – taken into account on re-sentence Legislation Cited: Crimes Act 1900 (NSW) s 193B(2) Crimes (Administration of Sentences) Act 1999 (NSW) s 160 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 32, 33, 44(1), 47(4) Drug Misuse and Trafficking Act 1985 (NSW) ss 10(1), 25(1) Cases Cited: Dudgeon v R [2014] NSWCCA 301 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Category: Principal judgment Parties: Kevin Grant Russell (Applicant) Regina (Respondent) Representation: Counsel: G Wendler (Applicant) H Roberts (Respondent)