Riley v R [2019] NSWCCA 92

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Riley v R [2019] NSWCCA 92 Hearing dates: 5 April 2019 Date of orders: 10 May 2019 Decision date: 10 May 2019 Before: Macfarlan JA at [1] R A Hulme J at [2] Davies J at [3] Decision: (1) Leave to appeal.

(2) Allow the appeal.

(3) Quash the sentence imposed by Judge King SC in the District Court on 31 May 2018, in lieu, sentence the appellant to a non-parole period of two years and two months commencing 15 December 2017 and expiring 14 February 2020 with a balance of term of ten months expiring 14 December 2020. Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to the offence of aggravated enter dwelling with intent to commit a serious indictable offence – circumstance of aggravation that applicant entered knowing a person was present in the dwelling - further offences taken into account on a Form 1 – whether the sentencing judge gave full weight to the applicant's deprived background – where the applicant had failed to make the most of opportunities for rehabilitation – application of principles in Bugmy v the Queen – whether the sentencing judge double counted the aggravating factor of the presence of the victim in the dwelling at the time of the break and enter – where the presence of a person in the dwelling was an element of the offence - need to re-sentence – lesser sentence warranted in law Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Ingrey v R [2016] NSWCCA 31 Johan v R [2015] NSWCCA 58 R v Bugmy [2012] NSWCCA 223 R v Fernando (1992) 76 A Crim R 58 Texts Cited: Nil Category: Principal judgment Parties: Kamarah Rose Riley (Applicant) Crown (Respondent) Representation: Counsel: Dr A Hughes (Applicant) K Jeffreys (Respondent)