Newman (a pseudonym) v R [2019] NSWCCA 157

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Newman (a pseudonym) v R [2019] NSWCCA 157 Hearing dates: 3 June 2019 Date of orders: 17 July 2019 Decision date: 17 July 2019 Before: Basten JA at [1]; Hamill J at [70]; Lonergan J at [78] Decision: (1) Grant the applicant an extension of time until 21 December 2018 to file his application for leave to appeal the sentence imposed by the District Court on 23 November 2015.

(2) Grant the applicant leave to appeal.

(3) Allow the appeal and set aside the sentence imposed in the District Court.

(4) Resentence the offender to an aggregate sentence of 6½ years with a non-parole period of 4 years commencing on 19 September 2015. The non-parole period will expire on 18 September 2019; the total sentence will expire on 18 March 2022.

(5) The earliest day on which the applicant is eligible for release on parole is 18 September 2019. Catchwords: CRIMINAL LAW – appeal against sentence – offender convicted of multiple drug supply offences –sentencing judge inferred from prior conviction that offender had previously used growth hormone – error conceded – whether error sufficient to warrant resentencing – agreement between parties – effect of Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 considered

CRIMINAL LAW – appeal against sentence – resentencing – nature of remorse – offender did not testify – limited reliance on self-serving statements to psychologist – need for transparency in accumulation of sentences – appropriateness of aggregate sentence – special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23, 44, 53A Drug Misuse and Trafficking Act 1985 (NSW). s 25 Cases Cited: Baxter v The Queen (2007) 173 A Crim R 284; [2007] NSWCCA 237 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Carroll v The Queen [2009] HCA 13; 83 ALJR 579 DL v The Queen [2018] HCA 32; 92 ALJR 764 House v The King (1936) 55 CLR 499 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Roberts (a Pseudonym) v R [2019] NSWCCA 102 Category: Principal judgment Parties: John Newman (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: Ms M Cinque SC (Applicant) Mr D Barrow (Respondent)