Maglis v R - [2010] NSWCCA 247

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Maglis v R [2010] NSWCCA 247

FILE NUMBER(S):
2008/7691

HEARING DATE(S):
28 October 2010

JUDGMENT DATE:
15 November 2010

PARTIES:
Michael John MAGLIS - Applicant
Regina - Crown/Respondent

JUDGMENT OF:
Handley AJA Adams J Howie AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/00007691

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ RFD QC

LOWER COURT DATE OF DECISION:
1 February 2010

COUNSEL:
Mr K Averre - Applicant
Ms S Dowling - Crown/Respondent

SOLICITORS:
SE O’Connor, Legal Aid - - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Crown/Respondent

CATCHWORDS:
Proceedings after conviction – Appeal – Sentence – application of totality principle – partly cumulative sentences – finding of special circumstances not reducing over all non-parole period.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, s 44
Crimes Act 1900, s 97(1),(2)

CATEGORY:
Principal judgment

CASES CITED:
Lesi [2010] NSWCCA 240
Nahlous v R [2010] NSCCA 58
Schembri v R [2010] NSWCCA 142
Taufahema [2010] NSWCCA 241

TEXTS CITED:

DECISION:
1. The application for leave be granted and the appeal be allowed in part.
2. The sentences for counts 3 and 4 are quashed.
3. In lieu the applicant is sentenced as follows:
(a) On count 3 a term of imprisonment made up of a non-parole period commencing on 9 November 2010 and expiring on 4 June 2013 with a balance of term to expire on 28 March 2016.
(b) On count 4 a term of imprisonment made up of a non-parole period commencing on 9 November 2010 and expiring on 4 June 2013 with a balance of term to expire on 28 March 2016.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/07691
HANDLEY AJA
ADAMS J
HOWIE AJ
MONDAY 15 NOVEMBER 2010

Michael John MAGLIS v R

Judgment

HANDLEY AJA: I agree with Howie AJ.
ADAMS J: I agree with Howie AJ.
HOWIE AJ: The applicant seeks leave to appeal against sentences imposed in the District Court by Finnane DCJ following upon the applicant pleading guilty to four counts on an indictment. The first, second and fourth counts alleged an offence of armed robbery contrary to s 97(1) of the Crimes Act 1900. The third count alleged an attempt to commit an armed robbery with a dangerous weapon contrary to s 97(2) of that Act. An offence of armed robbery carries a maximum penalty of imprisonment for 20 years. An offence of armed robbery with a dangerous weapon carries a maximum penalty of 25 years imprisonment.
There were also two Form 1 schedules. The first contained an offence of knowingly deal with the proceeds of crime and was to be taken into account when sentencing on Count 1. The second Form 1 contained an offence of armed robbery and was to be taken into account when sentencing on Count 3.
Although the pleas were taken on 30 September 2008, the applicant was not sentenced until 1 February 2010. On that date the applicant was sentenced to a total period of imprisonment of 7 years, 4 months and 22 days with an overall non-parole period of 5 years, 8 months and 10 days. He is eligible for release to parole on 18 July 2014 and the total sentence expires on 1 April 2016.
The grounds of appeal filed were as follows:
1.The sentencing judge erred in overstating the significance of the prior history of the applicant and was therefore less inclined to deal with the applicant in a more favourable or lenient manner.
2.The sentencing judge erred in the structuring of the sentences for the individual offences in that there was an inappropriate accumulation of the sentences imposed which led to a combined sentence that overstated the total criminality of the offences.
3The sentencing judge erred in failing to structure the sentences imposed so as to:
(i) give proper effect to s 44 Crimes (Sentencing Procedure) Act 1999; and
(ii) vary the statutory ratio having expressly stated his intention to do so.
The first ground was abandoned at the hearing. By the conclusion of oral arguments from the parties, it was only the third ground of appeal that was relied upon by the applicant and the Crown conceded both the fact of error and the need for the Court to re-sentence the applicant. In those circumstances it is unnecessary to give any great detail of the offences or of the applicant’s subjective circumstances.
The first count related to an armed robbery committed on 11 February 2006 at a hotel in Auburn. The applicant and three co-offenders drove to the hotel. The applicant was disguised with a black jumper covering his face. He was armed with a handgun, as was one of the co-offenders. Demands were made for money and $1500 removed from the cash register. Police later found a glove on which was DNA fitting the profile of that of the applicant.
The related Form 1 offence apparently concerned the proceeds of another armed robbery for which the applicant had been sentenced by Judge Marien. If that were the case, the charge was an abuse of process: see Nahlous v R [2010] NSCCA 58 and Schembri v R [2010] NSWCCA 142. However, no issue was taken with the sentence imposed for Count 1.
The second count related to an armed robbery committed at a hotel in Bexley on 15 February 2006. The same three persons committed this offence as in Count 1. The applicant was disguised by a balaclava. He was armed with a baseball bat, one co-offender with a handgun and another with a machete. Money was demanded and $5,000 removed from a cash register.
The third count related to an attempted armed robbery of a hotel at Botany on 16 February 2006. The same three offenders and a fourth person were involved. One offender was armed with a baseball bat, another with a handgun and a third with a screwdriver. During the offence an altercation occurred between a customer, aged 82 years, and one of the offenders resulting in the customer being knocked to the floor. A patron then stated that the gun was not real and the offenders fled. Police were notified and pursued the vehicle in which the offenders were travelling. When the vehicle was stopped, the offenders except for the driver fled. The driver and two co-offenders were arrested. The applicant and the remaining co-offender made good their escape.
The related Form 1 matter involved an armed robbery that took place on 4 January 2006. The offence took place at a hotel in Bexley and involved four offenders. The applicant was armed with a handgun and a co-offender with a baseball bat. The applicant confronted a staff member ordering him to open the till. $5,030 was taken.
The fourth count related to an armed robbery on 19 April 2006 upon a hotel in Campsie. The applicant was armed with a handgun. He and a co-offender entered the hotel and demanded money. Another co-offender remained outside. The sum of $600 was obtained and the two offenders went to leave the premises. However the co-offender was detained by a security guard, but the applicant and the third offender escaped. DNA evidence at the scene identified the applicant.
In respect of the first count and taking into account the Form 1 matter, the applicant was sentenced to a term of imprisonment made up of a non-parole period of 2 years with a balance of term of 1 year 9 months and 27 days. The sentence dated from 9 November 2008 and the non-parole period expires on 8 November 2010.
In respect of the second count the applicant was sentenced to a term of imprisonment made up of a non-parole period of 1 year 10 months and 13 days with a balance of term of 1 year, 10 months and 14 days. The sentence dated from 9 November 2009 and the non-parole period expires on 21 September 2011.
In respect of the third count and taking into account the matter on the Form 1, the applicant was sentenced to a term of imprisonment made up of a non-parole period of 3 years 8 months and 10 days with a balance of term of 1 year, 8 months and 10 days. The sentence commences on 9 November 2010 and the non-parole period expires on 18 July 2014.
In respect of the fourth count the applicant was sentenced to a term of imprisonment made up of a non-parole period of 1 year 10 months and 13 days with a balance of term of 21 months and 7 days. The sentence commences on 9 November 2011 and the non-parole period expires on 14 June 2015.
The sentences were imposed after the application of a discount of 10 per cent for the pleas of guilty that were entered after a voir dire hearing on the trial of the counts on the indictment. The sentence on count 4 was subsumed by the sentence for count 3.
The most salient fact for the determination of the appeal is that on 27 November 2007 the applicant was sentenced for an armed robbery committed on 9 May 2006, that is an offence committed later than those for which Judge Finnane sentenced him. The sentence was a term of imprisonment of 4 years with a non-parole period of 2 years 6 months. It dated from 9 November 2006 and the non-parole period expired on 8 May 2009.
The applicant was born on 13 September 1981. A pre-sentence report was prepared in June 2009. The applicant reported an unhappy childhood until his father left home when the applicant was aged 10. He and his siblings became the prime carers for their mother who had Huntington’s Disease until she died in 2000. The applicant fears that he may have inherited the illness. He started an apprenticeship as a plumber when he left school at age 17 but never completed it. He reported that he was using the drug Rohypnol at the time of the offences but has undertaken drug counselling while in custody. The chief motive for the offences was claimed to be the need to obtain finances to repay a debt. He was refused parole in March 2009 because of the present offences.
There were reports in evidence from a psychiatrist and a neuropsychologist. They were chiefly concerned with the applicant’s belief that he would develop the disease from which his mother suffered. The applicant reported that he believed he was suffering from symptoms consistent with the condition and was anxious and depressed about it. But he had not undergone any genetic testing for the disease. Nothing in these reports impacted upon the sentences imposed by his Honour or the re-sentencing of the applicant by this Court.
The applicant had a criminal record that included offences of a like nature as those for which he was sentenced. Judge Finnane found that this record did not act as an aggravating factor but it made it difficult for him to conclude that the applicant would rehabilitate himself.
His Honour found that there were special circumstances and applied that finding to reduce each of the non-parole periods that he specified for the individual sentences. He also had totality in mind because he backdated the overall sentence imposed to commence on 9 November 2008 so that “this sentence together with the sentence he is serving will not be too extreme”.
The overall non-parole period imposed by Judge Finnane was, on my calculation, 77 per cent of the overall head sentence. For my part I do not understand why a judge would find special circumstances on each separate offence, yet impose a sentence on overall basis where the non-parole period is more than 75 per cent of the total sentence. This Court has on more than one occasion been troubled by applications for leave to appeal in similar situations. Sometimes the Court has upheld the appeal and sometimes it has been dismissed. The individual decisions depend upon what can be gleaned of the Judge’s intention from the sentencing remarks.
In the course of his remarks Judge Finnane stated:
I intend to find and I do find that there are special circumstances, and the reason I find that is that these four matters, together with a matter for which he is sentenced, in reality should be regarded as all one venture, in a sense. This is the first time he has been in gaol. He has been in gaol now for some time. He is twenty-eight years old now almost. He should have some expectation that he would get out at a period in his life when he could get on and do something else.
Those remarks indicate to me that his Honour intended a finding of special circumstances to apply to the overall period of custody that the applicant was required to serve as a result of the five offences he had committed.
However, not only did his Honour’s finding of special circumstances not translate into a reduction of the overall non-parole period imposed by him, but also, when consideration is given to the overall sentence he is to serve as a result of the sentences imposed by both Judges, the overall non-parole period is about 80 percent of the total sentence. I do not believe that Judge Finnane intended this result. As I have indicated the Crown fairly conceded the point.
In case the Court were required to re-sentence the applicant, it received further evidence by way of affidavit, one being from the applicant as to his current situation in custody. He is on protection due to assaults upon him by other prisoners. He is still highly anxious and depressed as a result of his fear of inheriting the disease from which his mother suffered and this, he believes, makes him paranoid about the consequences for him of being assaulted. Despite being on protection, he has been able to participate in a course designed to assist him to take responsibility for his actions and to control himself.
However, the reduction of the non-parole period by a finding of special circumstances cannot result in an overall non-parole period that fails to reflect the seriousness of the offence and both specific and general deterrence. I do not believe that the total sentence imposed for the offences is manifestly excessive in light of the seriousness of the offending and the fact that the discount allowed for these four offences was only 10 per cent. Having regard to sentences that this Court imposed on the day the application was heard, being R v Taufahema [2010] NSWCCA 241 and R v Lesi [2010] NSWCCA 240 (each a successful Crown appeal against sentences imposed by Judge Finnane for multiple offences of armed robbery) the sentences imposed upon the applicant were moderate, if not lenient. This is probably why ground 2 was not forcefully argued.
Although the applicant pointed out that he had been in continual custody since the 10 May 2006, that was because of a sentence imposed in the Local Court for some unrelated criminal activity. There is little information in relation to that matter before this Court. Judge Marien took that sentence into account in determining the commencement date for the sentence for the armed robbery and, presumably in determining the non-parole period he imposed. There was no appeal in respect to Judge Marien’s sentence. I do not believe that the Court should take that matter into account in determining the proper non-parole period in relation to the offences dealt with in the District Court.
In my opinion the finding of special circumstances by Judge Finnane should translate into an overall non-parole period that is 70 per cent of the overall total sentence of 9 years 4 months and 20 days. That will result in an overall non-parole period of 6 years 6 months and 26 days and a balance of sentence of 2 years 9 months and 25 days. The overall non-parole period would expire on 4 June 2013 resulting in the applicant being entitled to be considered for parole some 13 months earlier than the date specified by Judge Finnane.
As it happens that date is the expiry date of the parole period on Count 2. The simplest way to achieve the result intended is to reduce the non-parole periods on Counts 3 and 4 to expire on that date as well. This has the result that the applicant seems to receive no extra punishment for Count 3 because of the common date for the expiry of the non-parole period for counts 2, 3 and 4. Had the Court been completely re-sentencing the applicant it would have avoided that consequence. But it seems to me to be unnecessarily technical for the Court to reduce the sentence for Count 2, which is not excessive, simply to achieve the appearance that the applicant has had his period of custody extended by Count 3. The application has been conducted and determined on totality considerations and not the correctness of any individual sentence.
I propose the following orders:
1.The application for leave be granted and the appeal be allowed in part.
2. The sentences for counts 3 and 4 are quashed.
3. In lieu the applicant is sentenced as follows:
(a)On count 3 a term of imprisonment made up of a non-parole period commencing on 9 November 2010 and expiring on 4 June 2013 with a balance of term to expire on 28 March 2016.
(b)On count 4 a term of imprisonment made up of a non-parole period commencing on 9 November 2010 and expiring on 4 June 2013 with a balance of term to expire on 28 March 2016.
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LAST UPDATED:
18 October 2013