Rae v R [2019] NSWCCA 284

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rae v R [2019] NSWCCA 284 Hearing dates: 1 November 2019 Date of orders: 11 December 2019 Decision date: 11 December 2019 Before: Macfarlan JA at [1] Harrison J at [2] Cavanagh J at [48] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed upon Mr Rae by Ellis DCJ on 17 August 2017. (4) Remit the matter to Ellis DCJ for sentence, or another judge of the District Court if his Honour is not available. (5) Direct that the matter be placed in the District Court arraignments list on 20 December 2019. Catchwords: CRIME – appeal – appeal against sentence – where applicant pleaded guilty to being an accessory after the fact to aggravated break, enter and steal – where applicant sentenced to a term of 4 years and 8 months imprisonment with a non-parole period of 3 years – whether miscarriage of justice arose because of omission by applicant's legal representatives to place evidence of applicant's history of mental illness before the District Court – where miscarriage of justice arose because sentencing judge did not have relevant evidence before him – appeal allowed – whether matter should be remitted for sentence Legislation Cited: Crimes Act 1900 (NSW), s 112(2) Criminal Appeal Act 1912 (NSW), s 6(3) Cases Cited: Alkhair v R [2016] NSWCCA 4 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 Goodwin v R (1990) 51 A Crim R 328 Many v R (1990) 51 A Crim R 54 Pym v R [2014] NSWCCA 182 R v Abbott (1985) 17 A Crim R 355 R v Abou-Chabake [2004] NSWCCA 356 R v Diab [2005] NSWCCA 64 R v Fordham (1997) 98 A Crim R 359 R v Hemsley [2004] NSWCCA 228 Ratten v The Queen (1974) 131 CLR 510 Category: Principal judgment Parties: Benjamin Thomas Rae (Applicant) Crown (Respondent) Representation: Counsel: J Paingakulam (Applicant) B Baker (Respondent)