Er v R [2018] NSWCCA 286

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Er v R [2018] NSWCCA 286 Hearing dates: 26 November 2018 Decision date: 07 December 2018 Before: Hoeben CJ at CL at [1]; Bellew J at [66]; Campbell J at [67] Decision: (1) Leave to appeal against sentence is granted. (2) The appeal is allowed and the sentence imposed on the applicant by his Honour Judge Bennett SC on 17 November 2017 is quashed. (3) In lieu thereof the applicant is sentenced as follows: (a) In respect of the drive while disqualified offence on 23 March 2016 imprisonment for 9 months, commencing 1 October 2017 and expiring 30 June 2018. (b) For the break enter and steal offence on 23 March 2016 imprisonment with a non-parole period of 1 year and 8 months, commencing 1 February 2018 and expiring 30 September 2019, with a balance of term of 1 year and 4 months expiring 31 January 2021. (c) The applicant is disqualified from holding a driver's licence for 12 months commencing 30 September 2019 until 29 September 2020. Catchwords: CRIMINAL LAW – sentence appeal – one count of break enter and steal and one count of driving while disqualified – imprisonment for 5 years and 6 months with a non-parole period of 3 years – whether sentencing judge misapprehended the sentence imposed upon a co-offender – whether parity principle breached – whether sentencing judge took into account the totality principle – whether sentencing judge acted upon an erroneous maximum penalty in respect of the drive while disqualified offence – whether overall sentence manifestly excessive – error in the sentencing process made out – need to re-sentence – appeal allowed and sentence reduced. Legislation Cited: Crimes Act 1900 (NSW) – s 112(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) s3A, 19(2) Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Criminal Procedure Act 1986 (NSW) – s 166 Road Transport Act 2013 (NSW) – s 9, 54(1)(a), 205A Road Transport (Driver Licence Disqualification) Act 2017 (NSW) Cases Cited: Andreata v R [2015] NSWCCA 239 Estephan v R [2015] NSWCCA 100 Kandemir v R [2018] NSWCCA 154 Category: Principal judgment Parties: William Er – Applicant Regina – Respondent Crown Representation: Counsel: S Howell – Applicant M England – Respondent Crown Solicitors: E McWilliams – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2016/096895 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 November 2017 Before: Bennett SC DCJ File Number(s): 2016/096895