Hardey v R [2019] NSWCCA 310

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hardey v R [2019] NSWCCA 310 Hearing dates: 15 November 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Before: Brereton JA at [1] Bellew J at [2] Lonergan [68] Decision: (1) Leave to appeal against the sentence imposed in the District Court on 5 December 2018 is granted.

(2) The appeal is allowed.

(3) The sentence imposed in the District Court on 5 December 2018 is quashed.

(4) In lieu thereof, the applicant is sentenced to a non-parole period of 2 years imprisonment commencing on 5 July 2018 and expiring on 4 July 2020, with an additional term of one year imprisonment commencing on 5 July 2020 and expiring on 4 July 2021. Catchwords: CRIMINAL LAW – Appeal – Sentence – Where sentencing judge imposed sentence partially cumulative on existing sentence – Where special circumstances were found – Structure of sentences such that the applicant would be required to serve 80% of his total sentence before being eligible for parole – Nothing to indicate that the sentencing judge considered the precise impact of the level of accumulation – Error established – Applicant re-sentenced

CRIMINAL LAW – Appeal – Sentence – Parity principle – Whether applicant had a justifiable sense of grievance in light of the sentence imposed on a co-offender – Clear distinguishing subjective features between the two cases – No unjustified disparity in the respective sentences imposed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure Act) 1999 (NSW) Cases Cited: CM v R [2013] NSWCCA 341 GP v R [2017] NSWCCA 200 Green v The Queen; Quinn v the Queen (2011) 244 CLR 462; [2011] HCA 49 Huang v R [2019] NSWCCA 144 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Maglovski v R [2014] NSWCCA 238 McKittrick v R [2014] NSWCCA 128 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v MAK; R v MSK [2006] NSWCCA 381 Category: Principal judgment Parties: Justin Hardey – Applicant Regina – Respondent Representation: Counsel: C Wasley – Applicant C Curtis - Respondent