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[2022] NSWCCA 193
Court of Criminal Appeal (NSW)
2022-08-31
Beech-Jones CJ, Adamson J, Campbell J, Judge O'Brien AM
Original judgment source is linked above.
HEADNOTE [This headnote is not to be read as part of the judgment] On 27 August 2021, the applicant entered a plea of guilty in the District Court to two charges of robbery in company committed on 29 November 2018. The applicant was later sentenced by O'Brien DCJ on 28 October 2021 to an aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and 2 months. His Honour allowed a 5% discount for the utilitarian value of the plea of guilty in accordance with s 25D(2)(c) Crimes (Sentencing Procedure) Act 1999 (NSW). The history of the proceedings is that the applicant and the co-offenders were arrested on 22 February 2019, and arraigned on 25 October 2019, when he entered a plea of not guilty to each count. The trial was initially fixed to commence on 23 March 2020. On 20 March 2020, as a result of the Coronavirus pandemic restrictions on jury trials, the applicant and the remaining co-accused elected not to waive their right to a jury trial, the trial was therefore vacated, and fixed for commencement on 6 October 2020 before King DCJ. Following the finalisation of another trial before King DCJ, the indictment was presented on 8 October 2020, and the applicant entered a plea of not guilty to each charge on arraignment, following which a voir dire took place prior to the empanelment of the jury. The trial was adjourned to Monday 12 October 2020, when the applicant failed to appear in accordance with his bail undertaking. He then remained at large until he was re-arrested on 19 July 2021. He was brought before the District Court by bench warrant on 27 August 2021, on which date he entered a plea of guilty to each count on the indictment. The applicant sought leave to appeal from his sentence pursuant to s 5(1)(c) Criminal Appeal Act 1912 (NSW). The principal issue on appeal was whether the applicant's plea of guilty on 27 August 2021 warranted a 10% reduction for utilitarian value pursuant to s 25D(2)(b)(i) Sentencing Act? The Court held (Campbell J, Beech-Jones CJ at CL and Adamson J agreeing), granting leave to appeal and dismissing the appeal: The term "vacated" within s 25C(1) means adjourned before the commencement of the trial, and is not applicable in circumstances where the trial was aborted because the applicant absconded. R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507; [2019] HCA 35 cited.
Judgment
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Gurin
R
(2007) 73 NSWLR 308
(1936) 55 CLR 499
(2014) 252 CLR 601
(2019) 269 CLR 507
(2000) 49 NSWLR 383
[1936] HCA 40