McCabe v Regina - [2006] NSWCCA 160

Reported Decision:
162 A Crim R 166

New South Wales

Court of Criminal Appeal

CITATION: McCabe v Regina [2006] NSWCCA 160

HEARING DATE(S): 6 February 2006

JUDGMENT DATE:
22 May 2006

JUDGMENT OF: Beazley JA at 1

DECISION: 1. The appeal is allowed; 2. The sentences imposed on the appellant on 8 March 2005 are confirmed.

CATCHWORDS: CRIMINAL LAW – sentencing – sentences imposed by Drug Court following termination of Drug Court programme – appeal against severity – sentencing – aggravating factors – whether multiple offences of break, enter and steal in one block of units constituted a series of criminal acts with multiple victims – single criminal act and single victim for each offence – not an aggravating factor - SENTENCING – prior like offences – no error - SENTENCING – prior convictions – prior convictions are not an aggravating factor - SENTENCING – re-sentencing – Court may confirm sentence imposed by the trial judge notwithstanding a finding that the trial judge erred – lenient sentences imposed by trial judge – sentences confirmed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), ss.3A, 4, 8A, 21A, 33
Crimes Act 1900 (NSW), s.112(1)
Criminal Appeal Act 1912 (NSW), ss.5AA, 5AF
Drug Court Act 1988 (NSW), ss.5, 6, 7, 12, 24

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Astill (1992) 64 A Crim R 148
R v Blair [2005] NSWCCA 78
R v Cocking [1999] NSWCCA 311
R v Crombie [1999] NSWCA 297
R v McQueeney [2005] NSWCCA 168
R v Ponfield (1999) 48 NSWLR 327
R v Rice (2004) 150 A Crim R 37
R v Tadrosse [2005] NSWCCA 145
Ryan v The Queen (2001) 206 CLR 267

PARTIES: Shane Anthony McCabe (Appellant)
Crown (Respondent)

FILE NUMBER(S): CCA 2005/1851

COUNSEL: Mr H Dhanji (Appellant)
Mr G Rowling (Crown)

SOLICITORS: Steve O'Connor (Appellant)
S Kavanagh (Crown)

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S): 2003/0035

LOWER COURT JUDICIAL OFFICER: Senior Judge Dive

LOWER COURT DATE OF DECISION: 08/03/2005

- 2 -

2005/1851 CCAP

Beazley JA

22 May 2006

McCabe v R

Headnote

FACTS
The appellant had committed a number of indictable and summary offences to which he pleaded guilty and was determined to be eligible to participate in a Drug Court programme. “ Initial sentences ” for the offences were imposed by the Drug Court but were suspended so that the appellant could participate in the programme pursuant to the Drug Court Act 1988 (NSW) (the Drug Court Act ). The programme was terminated on 31 August 2004 due to the appellant’s non-compliance with its conditions.

The appellant came before the Drug Court again for reconsideration of the “ initial sentences ” and the imposition of “ final sentences ”: s.12 Drug Court Act . The appellant also came before the Drug Court for sentencing in respect of further offences that he had committed both during the programme and following its termination.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCabe v Regina

Details

AGLC: McCabe v Regina [2006] NSWCCA 160
Case: [2006] NSWCCA 160
Decision Date: 22 May 2006

CaseChat Overview and Summary

McCabe was charged with multiple counts of breaking and entering and stealing from a series of units within a single block. The matter was heard in the Court of Appeal where the defendant appealed against the sentences imposed by the primary judge. The appeal was focused on the severity of the sentences, the consideration of multiple offences as an aggravating factor, the relevance of prior like offences and convictions, and the appropriateness of the sentences imposed by the trial judge.

The court considered whether the multiple offences constituted a series of criminal acts with multiple victims, or whether they were a single criminal act with a single victim. It was held that the offences were each a separate criminal act with a single victim, and thus could not be considered as an aggravating factor. The court also considered the relevance of prior like offences and prior convictions, holding that these were not aggravating factors. Finally, the court considered the appropriateness of the sentences, noting that the trial judge had imposed lenient sentences, and that the Court of Appeal could confirm these sentences despite any errors made by the trial judge.

The appeal was dismissed, and the sentences imposed by the trial judge were confirmed. The court held that the trial judge had not erred in his consideration of the aggravating factors, prior like offences, and prior convictions. The court also held that the sentences imposed were appropriate, and that it was within its power to confirm the sentences imposed by the trial judge despite any errors made.

Orders