Johan v R [2019] NSWCCA 126

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Johan v R [2019] NSWCCA 126 Hearing dates: 12 June 2019 Date of orders: 21 June 2019 Decision date: 21 June 2019 Before: Payne JA at [1], Davies J at [28], Button J at [29] Decision: (1) Leave granted to appeal out of time. (2) Leave to appeal granted. (3) Appeal allowed. (4) Sentence imposed by Blackmore SC DCJ on 23 June 2017 upon Mr Johan set aside. (5) Mr Johan is resentenced to an aggregate period of imprisonment of 5 years and 8 months commencing on 17 September 2015 and expiring on 16 May 2021. He is sentenced to an aggregate non-parole period of 4 years, 3 months' imprisonment commencing on 17 September 2015 and ending on 17 December 2019. His release to parole on 17 December 2019 is recommended. Catchwords: CRIMINAL LAW – appeal – appeal against sentence –aggravated break, enter and steal under s 112(2) of Crimes Act 1900 (NSW) – offences committed as part of joint criminal enterprise – whether effect of delay taken into account when fixing non-parole period – assessment of subjective case – leave to appeal out of time granted – leave to appeal granted – appeal upheld – applicant resentenced Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 113(2) Criminal Appeal Act 1912 (NSW), s 6(3) Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(4) Cases Cited: DL v The Queen [2018] HCA 32; 92 ALJR 764 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 JM v R [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 Category: Principal judgment Parties: Franco Johan (Applicant) Regina (Respondent) Representation: Counsel: I McLachlan (Applicant) K Ratcliffe (Respondent)