Callaghan v R

Case [2006] NSWCCA 58


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Callaghan v R [2006]  NSWCCA 58

FILE NUMBER(S):
2006/293

HEARING DATE(S):               21 February 2006

DECISION DATE:     10/03/2006

PARTIES:
Jason Callaghan - Applicant
Crown - Respondent

JUDGMENT OF:       James J Simpson J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/21/1104

LOWER COURT JUDICIAL OFFICER:     English DCJ

COUNSEL:
A Francis - Applicant
V Lydiard - Respondent

SOLICITORS:
SE O'Connor - Applicant
S Kavanagh - Respondent

CATCHWORDS:
application for leave to appeal against severity of sentence
two charges of break and enter with intent to steal
pleas of guilty
offences committed whilst on parole
parole revoked
sentences in respect of present offences made fully cumulative upon the head sentence is respect of previous offences
effect of revocation of parole
whether applicant doubly punished for the fact that offences were committed whilst on parole
discretion to backdate a sentence where parole has been revoked by  reason of the offence for which the offender is to be sentenced
exercise of discretion found not to have miscarried

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, s21A(2)(j), s24, s50(1)

DECISION:
Application for leave to appeal against severity of sentence granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/293

JAMES J
SIMPSON J
HALL J

Friday 10 March 2006

Jason CALLAGHAN  v  REGINA

Judgment

  1. JAMES J:  I agree with Simpson J.

  2. SIMPSON J:  The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 14 October 2005 following his pleas of guilty to two charges of break and enter with intent to steal.  On the first count the applicant was sentenced to imprisonment for a fixed term of six months; on the second, to imprisonment for a total period of two years with a non-parole period of twelve months.  Both sentences were fixed to commence on 15 July 2005, the first to be served concurrently with the second, longer term.

  3. Given the very narrow scope of the application, the circumstances of the offences and matters personal to the applicant may be outlined succinctly.

  4. The two offences were committed in the same premises, nine days apart.  On 11 January 2005, late at night, and again on 20 January 2005, in the early hours of the morning, the applicant used an object to smash a glass panel in a video shop at Seven Hills.  He entered the premises and searched drawers and cupboards but left without taking any money or property.  On the earlier occasion, having left the premises, the applicant returned and re-entered, but again left with no property.

  5. The applicant was arrested on 27 January 2005.  He has remained in custody since that date.  At the time of these offences he was at liberty on parole in respect of a series of offences for which he was sentenced in the Parramatta Local Court on 24 June 2004.  The sentencing judge took this into account, properly, as a factor aggravating the applicant’s criminality:  see Crimes (Sentencing…

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AGLC
Callaghan v R [2006] NSWCCA 58
Case
[2006] NSWCCA 58
Decision Date

CaseChat Overview and Summary

The applicant, Callaghan, appealed against the severity of the sentence imposed by the Supreme Court of Queensland. He was convicted on two charges of break and enter with intent to steal, to which he pleaded guilty. These offences were committed while he was on parole for previous offences. The applicant's parole was revoked, and the sentences in respect of the present offences were made fully cumulative upon the head sentence in respect of the previous offences. The applicant argued that he was doubly punished for the fact that the offences were committed while on parole, and that the discretion to backdate a sentence where parole had been revoked by reason of the offence for which the offender is to be sentenced should have been exercised. The court was required to determine whether the applicant had been doubly punished and whether the exercise of discretion to backdate the sentence had miscarried.

The court found that the applicant had not been doubly punished for the fact that the offences were committed while on parole. The court noted that the revocation of parole was a consequence of the commission of the offences, and that the sentences were cumulative upon the head sentence for the previous offences. The court also found that the exercise of discretion to backdate the sentence had not miscarried. The court noted that the applicant had not demonstrated any special circumstances that warranted the exercise of the discretion in his favour. The court held that the sentence imposed was not manifestly excessive or inappropriate.

The applicant's application for leave to appeal against the severity of the sentence was dismissed. The court found that the sentence imposed was not manifestly excessive or inappropriate, and that the applicant had not been doubly punished for the fact that the offences were committed while on parole. The court also found that the exercise of discretion to backdate the sentence had not miscarried. The applicant's application for leave to appeal was dismissed, and the sentences imposed by the Supreme Court of Queensland were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JAMES J

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Ratio Decidendi

Legal Principle Established

Established by: JAMES J

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