Agnew (a pseudonym) v R [2018] NSWCCA 128

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Agnew (a pseudonym) v R [2018] NSWCCA 128 Hearing dates: 18 June 2018 Decision date: 27 June 2018 Before: Bathurst CJ at [1]; Basten JA at [2]; Price J at [48] Decision: (1) Grant the applicant leave to appeal with respect to the third ground of appeal and the additional ground.

(2) Otherwise refuse leave to appeal with respect to grounds 1 and 2.

(3) Set aside the sentence imposed in the District Court and in place thereof sentence the applicant to 16 months imprisonment, comprising a non-parole period of 11 months dating from 1 January 2017 and an additional term of 5 months.

(4) Direct that the applicant be released on parole at the end of the non-parole period on the conditions fixed by the District Court.

(5) On the basis that he enters custody on 27 June 2018, he will be released on parole on 5 September 2018. Catchwords: CRIME – appeals – sentencing – evidence of assistance to authorities rejected – sentence initially pronounced incorporated discount for assistance – sentence recast to remove discount – error in failing to admit evidence – whether appeal court required to resentence

CRIME – appeals – sentencing – evidence of further assistance to authorities – whether assistance post-sentencing available on appellate resentencing

CRIME – appeals – sentencing – plea entered on third day of period fixed for trial – plea to fresh indictment for lesser offence – lesser offence charged in Local Court – plea not proffered in Local Court – whether plea proffered at earliest opportunity – discount for late plea appropriate Legislation Cited: Crimes Act 1900 (NSW), ss 321, 323 Evidence Act 1995 (NSW), s 4 Criminal Appeal Act 1912 (NSW), ss 5, 6 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23 Cases Cited: De Campos v Regina [2006] NSWCCA 51 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1 JM v The Queen [2008] NSWCCA 254 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Munday [1981] 2 NSWLR 177 Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13 Category: Principal judgment Parties: Agnew (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: Mr P Lange (Applicant) Ms S Dowling SC (Respondent)