Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236 Hearing dates: 26 June 2019 Date of orders: 09 October 2019 Decision date: 09 October 2019 Before: Gleeson JA at [1] Harrison J at [2] N Adams J at [3] Decision: (1) The applicant be granted leave to appeal. (2) The appeal be allowed. (3) The aggregate sentence imposed by Wilson SC DCJ on the applicant on 8 June 2018 be set aside. (4) In lieu thereof: (a) Impose an aggregate sentence of 3 years imprisonment to commence on 8 June 2018 and expire on 7 June 2021. (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) set a non-parole period of 2 years and a balance of term of 1 year. (c) Specify that the earliest date the applicant will be eligible to be released on parole is 7 June 2020. (d) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentence that would have been imposed on each count under separate sentences instead of an aggregate sentence is 2 years imprisonment with a non-parole period of 1 year and 4 months. Catchwords: CRIME — appeals — appeal against sentence — error of law — procedural fairness — whether sentencing judge led the applicant to understand that a certain course would be adopted — sentenced on a different basis — where sentencing judge relied on matters in confidential affidavit in finding of objective seriousness — where statement not induced — prospects of rehabilitation — finding of "poor to moderate" prospects — objective seriousness Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1)(c) Firearms Act 1996 (NSW), s 23, s 39(1)(a), 51(1A) Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A Cases Cited: Athos v R [2013] NSWCCA 205 Baroudi v R [2017] NSWCCA 48 Brennan v R [2018] NSWCCA 22 Button v R [2010] NSWCCA 264 Chong v R [2017] NSWCCA 185 Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69 DL v The Queen [2018] HCA 32 El Jamal [2017] NSWCCA 243 El Masri v R [2014] NSWCCA 13 Gibson v Regina [2019] NSWCCA 221 Govinddaraju v R [2011] NSWCCA 55 JMS v R (2010) NSWCCA 229 Johan v R [2015] NSWCCA 58 Laspina v R [2016] NSWCCA 181 R v Bourchos (2002) 133 A Crim R 413 RO v R [2019] NSWCCA 183 Rodgers v R [2018] NSWCCA 47 Zreika v R (2012) 223 A Crim R 60 Category: Principal judgment Parties: Neil Harris (Applicant) Crown (Respondent) Representation: Counsel: I Lloyd QC with T Woods (Applicant) K Ratcliffe (Respondent)