McGoldrick v Regina

[2012] NSWCCA 7

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	McGoldrick v Regina [2012] NSWCCA 7
Hearing dates:	6 December 2011
Decision date:	13 February 2012
Before:	Bathurst CJ at 1 Simpson J at 2 Adamson J at 3
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - break, enter and steal offences on residential properties - whether adequate representation at sentencing - whether the sentence imposed was too severe - refusal by the Drug Court to follow the sentencing judge's recommendation that the applicant be accepted into a compulsory drug treatment program
Legislation Cited:	- Crimes Act 1900 (NSW) - s 112 (1) - Crimes (Sentencing Procedure) Act 1999 (NSW) - s 21A, s 32, s 44(2) - Criminal Appeal Act 1912 (NSW) - s 26 - Drug Court Act 1998 (NSW) - s 5A, s 18B
Cases Cited:	- R v Harris (2007) 171 A Crim R 267 - R v McNaughton (2006) 66 NSWLR 566 - R v McVittie [2002] NSWCCA 344 - R v Ponfield & Others (1999) 48 NSWLR 327 - Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Principal judgment
Parties:	Jason Anthony McGoldrick - Applicant Regina - Respondent
Representation:	Self represented - Applicant V Lydiard - Respondent Self represented - Applicant S Kavanagh - Respondent
File Number(s):	2009/059891
Decision under appeal	Date of Decision: 2010-03-23 00:00:00 Before: His Honour Judge Sides QC File Number(s): 2009/5989

Judgment

1. BATHURST CJ : I agree with Adamson J.

1. SIMPSON J : I agree with Adamson J.

1. ADAMSON J :

The Proceedings

1. This is an application for leave to appeal against the sentences imposed upon the applicant by his Honour Judge Sides QC in the District Court of New South Wales at Parramatta on 23 March 2010. The applicant was convicted of three counts of break, enter and steal contrary to s 112(1) of the Crimes Act 1900 (NSW), for which the maximum penalty is 14 years imprisonment. The sentencing judge was asked to take into account further offences of break, enter and steal, resist arrest, possession of car breaking implements and offensive language on a form filed in accordance with s 32 of the Act ( the Form 1 offences ).

Sentences

1. In relation to the first count committed 31 January 2006 the sentencing judge ordered a total term of 40 months imprisonment to commence on 23 June 2009, with a non-parole period of 30 months. In relation to the second count committed on 16 November 2008 his Honour ordered a total term of 40 months imprisonment to commence on 23 September 2009, with a non-parole period of 30 months. In relation to the third count committed on 4 December 2008 the sentencing judge order a non-parole period of 33 months with a total term of 4 years imprisonment to commence on 23 June 2010. On the latter count the Form 1 offences were taken into account.

1. The sentencing judge determined that the sentence would commence at the date of arrest, 23 June 2009.

1. The total effective sentence was 5 years with a non-parole period of 3 years and 9 months. The sentencing judge found special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ( the Act ) by reason of the accumulation of sentences and reduced the non-parole period in relation to the third count so that the overall non-parole period did not exceed three-quarters of the total term.

Facts

1. The sentencing judge recorded the following facts in respect of the three counts.

The first count: 31 January 2006

1. At some time between 5.55am and 7.10pm on 31 January 2006, the applicant broke into the victim's premises on Railway Parade, Westmead via a balcony door and removed a safe containing a ring worth $3,000. He also stole a camera and iPod. The three items together were valued at $4,380.

1. The applicant committed the offence the subject of this count a mere week after being released to bail on 24 January 2006.

The second count: 14-16 November 2008

1. At some time between 14 and 16 November 2008, the applicant climbed the balcony of the victim's unit in Campbell Street, Parramatta, broke in and stole a computer valued at $200 and a bottle of whiskey valued at $130.

A Form 1 offence: 17 November 2008

1. On 17 November 2008 the applicant climbed onto the balcony of the victim's unit at Kingswood and broke in. In the process, he cut himself and bled profusely. While still bleeding, he ransacked parts of the unit and stole two cameras and an iPod. The evidence does not indicate the value of these items.

The third count: 4 December 2008

1. At some time between 7am and 7pm on 4 December 2008, the applicant gained entry to the victim's unit by smashing a bathroom window. He ransacked three rooms and stole jewellery, a computer, and a wallet containing numerous cards. The total value of the property stolen was $2,770.

Other relevant matters

1. The applicant was detected in connection with all four break, enter and steal matters via a DNA match with blood that he had left at the scene.

1. On 23 June 2009 police spoke to the applicant after they had seen him asking certain women about obtaining drugs. When the police searched the applicant, they found car keys and a screwdriver, thereby giving rise to a Form 1 offence of possession of car breaking implements. While waiting to be taken to the police station, the applicant swore at police, thereby giving rise to a Form 1 offence of offensive language. He then violently resisted them to the point where capsicum spray had to be used to subdue him, thereby giving rise to a further Form 1 offence of resist arrest.

1. At the time of the 2008 offences the applicant was on parole having been released from custody on 31 October 2008. The applicant was on bail at the time of the commission of the 2006 offence having been released from custody on 24 January 2006. At the time of sentencing he had served a balance of parole of 3 months and 8 days from a previous sentence which commenced on 23 June 2009.

1. The Crown has informed this Court that the applicant has subsequently been dealt with for a further two offences of break, enter and steal in the Parramatta Local Court on 30 March 2010. He was sentenced to concurrent fixed terms of imprisonment of two years to commence on 30 March 2010 and expire on 29 March 2012. These subsequent sentences are wholly subsumed in the sentences the subject of this appeal.

1. Accordingly, the applicant has received no additional penalty for the 2006 offence and the two offences for which he was subsequently sentenced.

The Crown's submissions on sentence before the sentencing judge

1. The Crown on sentence submitted that the sentence should commence at the expiration of the parole period. The applicant was released on parole on 31 October 2008 with the period of parole in relation to an offence of aggravated robbery due to expire on 30 September 2009. The applicant committed an offence 16 days after his release on 16 November 2008 and a further offence less than a month after that on 4 December 2008. On 14 August 2009 the State Parole Authority revoked the parole with effect from 23 June 2009 (the date of arrest) and ordered that he serve the balance of 3 months and 8 days.

The applicant's evidence and submissions on sentence before the sentencing judge

1. The applicant was represented by a Legal Aid solicitor at the hearing on sentence. A comprehensive report from a clinical psychologist was tendered on sentence. During the applicant's evidence in the sentence hearing proceedings, he read from a statement in which he outlined his attempts to rehabilitate himself

Remarks on sentence

Discount for plea of guilty

1. The sentencing judge was persuaded by the applicant's guilty pleas that he accepted responsibility for his crimes and acknowledges the damage he had done to his victims. His Honour reduced the sentence by about 25 per cent to reflect the utilitarian value of his pleas of guilty in the Local Court.

No additional sentence for the first count

1. The sentencing judge determined that the sentence for the offence committed on 31 January 2006, although committed while the applicant was on conditional liberty, should be subsumed in the two other sentences and the balance of parole because of considerations arising from delay.

The relevant factors according to Ponfield

1. The sentencing judge considered the seriousness of the three offences in accordance with the guidelines set out in the guideline judgment In the matter of the Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act 1912 (NSW); R v Ponfield & Others (1999) 48 NSWLR 327; [1999] NSWCCA 435 ( Ponfield ). His Honour noted the following:

(1) all offences were committed in breach of either bail or parole;

(2) some of the places were ransacked, but there was no wanton vandalism beyond that required to achieve entry;

(3) the applicant did not return to the same victim's place to commit another offence;

(4) none of the property has been recovered;

(5) some of the property no doubt included property of a sentimental value;

(6) the offences were committed with limited planning in order to fund the applicant's addiction to illicit drugs;

(7) there was no professionalism in the execution of the offences;

(8) the applicant's drug addiction explains but does not excuse his offending.

The applicant's antecedents

1. The sentencing judge referred to the applicant's extensive criminal history and noted that he had been dealt with for multiple break, enter and steals in 1986, 1988 and 1992. His Honour noted that the applicant's record shows 19 convictions for break, enter and steals and two aggravated break and enters as well as several other convictions for offences involving dishonesty.

The applicant's subjective case

1. The sentencing judge considered the applicant's subjective case and referred to the difficulties in his upbringing and his problems with drug addiction. His Honour also noted his attempts at rehabilitation after the offence of 4 December 2008 when "he decided enough was enough, stopped using illegal drugs, went on a buprenorphine program and secured work as a builder's labourer". However, the sentencing judge found that the applicant's prospects of rehabilitation were:

"very poor because of: the entrenched nature of his addiction and failures to successfully address it in the long term; his criminal history and breaches of conditional liberty; and his failure to face reality of these offences without resorting to drug usage."

1. The sentencing judge also noted that the applicant's response to supervision during this time was satisfactory. His Honour observed that the applicant gave up his job and started using benzodiazepines again about a week before his arrest after he received a phone call from police that they wanted to talk to him.

Grounds of appeal

1. The applicant, who represents himself in this Court, relies on five grounds of appeal and has filed two pages of submissions in support of those grounds. He appeared at the hearing of his application for leave to appeal and made oral submissions.

Ground one: the applicant was not properly represented in court

1. The applicant did not elaborate on this ground in his written submissions other than to reassert that he was poorly represented.

1. The Crown submitted that the applicant was represented in the sentence proceedings by an experienced Legal Aid advocate, who made appropriate submissions to the sentencing judge on the basis of the subjective material that was before the Court, including a submission as to the applicant's remorse and reassessment of his life now that he is in his forties. Furthermore, the Crown submitted that all of the subjective material upon which the applicant relies in this Court was before the sentencing judge.

1. However, at the hearing, the applicant submitted that the sentencing judge had relied on facts that were said to have been agreed but which had not in fact accorded with the applicant's instructions, and therefore were not in fact agreed. This had not earlier been raised by the applicant in his grounds of appeal or in his written submissions and the Court did not have material such as would enable it to determine whether there was any substance to this submission.

1. During the course of submissions, the presiding judge provided the applicant with the opportunity to consider whether he wanted the matter adjourned so that he could obtain legal advice. When the applicant returned following the luncheon adjournment, he informed that Court that he would prefer to have the matter dealt with finally rather than have it adjourned.

1. For these reasons I do not consider that the complaint of incompetence on the part of the applicant's legal representative at the sentence hearing has been substantiated.

1. Accordingly, the first ground should be dismissed.

Ground two: sentence is too severe and applicant was rehabilitated

1. The applicant contends that the sentence imposed by the sentencing judge was too severe and submits that by the time he was arrested in June 2009 he had been rehabilitated. These contentions will be dealt with in turn.

1. This Court in R v Harris (2007) 171 A Crim R 267 emphasised that heavy sentences should generally be imposed for break, enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence.

1. Ponfield is the guideline judgment for break, enter and steal offences, contrary to s 112(1) of the Crimes Act . At [48]-[50], Grove J said:

"A court should regard the seriousness of an offence contrary to s 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is a cumulative effect upon seriousness and the need for appropriate reflection.

(i) The offence is committed whilst the offender is at conditional liberty on bail or on parole.

(ii) The offence is the result of professional planning, organisation and execution.

(iii) The offender has a prior record particularly for like offences.

(iv) The offence is committed at premises of the elderly, the sick or the disabled.

(v) The offence is accompanied by vandalism and by any other significant damage to property.

(vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the Criminal Procedure Act ). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416.

(vii) The offence is committed in a series of repeat incursions into the same premises.

(viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

(ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act , s 105A(1)(f)), it was likely that the premises would be occupied, particularly at night.

(x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act , s 105A(1)(c), (d) and (e)).

(xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation: Crimes Act , s 105A(1)(a)).

It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider it is not of itself a mitigating factor: see R v Henry (at 384 [193]-[203] and 387 [217]-[259]).

Section 439 of the Crimes Act obliges this Court to take into account the fact that a person has pleaded guilty and when that plea was indicated. Specification of reasons for any decision not to reduce sentence on account of such plea is mandatory. Statistical material suggests that there is a need to direct attention to the statutory requirement which in any event substantially rearticulates what the common law requires."

1. The Crown submitted in this Court that factors (i), (iii) and (vi) were particularly significant in the instant case and that the applicant's conduct warranted a commensurate sentence.

1. The Crown also points to the fact that the offences were committed while the applicant was on conditional liberty as amounting to an aggravating factor pursuant to s 21A(2)(j) of the Act. The Crown relied on this Court's decision in R v McVittie [2002] NSWCCA 344 as support for the proposition that parole is a privilege, abuse of which calls for a higher punishment.

1. The Crown submitted to the sentencing judge and to this Court that in light of the fact that the applicant had only been on parole for 16 and 34 days for offences as serious as aggravated robbery, his commission of these further offences was a very significant aggravating factor which not only increased the need for general and specific deterrence for the applicant, but was also relevant to an assessment of the applicant's prospects of rehabilitation.

1. The Crown submitted further that the applicant's antecedents were such that the sentence imposed ought reflect the fact that he has shown a continuing attitude of disobedience to the law: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; considered in R v McNaughton (2006) 66 NSWLR 566.

1. The Crown submitted that the applicant has not shown that the sentence is either too severe or manifestly excessive in the circumstance of the applicant's criminal history and his offending whilst on conditional liberty.

1. Furthermore the Crown submitted that the applicant has not shown that the sentencing judge failed to take into account sufficiently the applicant's steps toward rehabilitation. The Crown submitted that the sentencing judge also took into account, as his Honour was obliged to do, the applicant's relapse prior to arrest and his commission of further offences at the time of his arrest, when assessing the applicant's prospects of rehabilitation.

1. I agree with the Crown's submissions. The applicant has not demonstrated any respect in which the discretion of the sentencing judge miscarried or that the sentence itself is either severe or manifestly excessive.

1. I consider that ground two ought be dismissed.

Grounds three: mistakes made in factual material, and four: exclusion of evidence

1. The applicant has not provided the Court with arguments in support of these grounds in his written submissions, nor did he seek to do so in the oral hearing. Accordingly, these grounds should be dismissed.

Ground five: sentencing judge's recommendations not met

1. In his Honour's remarks on sentence, the sentencing judge said:

"The Court refers you to the compulsory drug treatment program."

1. This referral can be taken to be a referral pursuant to s 18B of the Drug Court Act 1998 (NSW) so that the Drug Court could determine whether the applicant should be the subject of a compulsory drug treatment order.

1. This Court has been informed by a letter to the Clerk of the District Court dated 27 July 2010, attached to the Crown's submissions, that the matters involving the applicant came before Judge Barnett of the Drug Court on 20 July 2010. Barnett DCJ made the following order: "Held not eligible for program."

1. The Crown contends, correctly in my view, that the applicant's record shows that he would not be an "eligible convicted offender" within the meaning of s 5A of the Drug Court Act . The applicant was convicted in Queensland on 12 November 2003 of an offence of an attempted robbery with actual violence and whilst armed with a dangerous weapon. Section 5A(2)(c) precludes an offender from eligibility if the person has been convicted at any time of an offence involving the use of a firearm.

1. Accordingly, this ground ought be dismissed.

Further matters

1. Although the applicant has not succeeded in any of his grounds of appeal, he made submissions to this Court that he wanted to participate in the programs administered by the Drug Court and that he wanted to be transferred from Goulburn Gaol to a prison where he would have a lower security classification so that he could have access to more training programs. He told the Court that he wants to be released so that he could be a better father to his children. He was also much affected by the deaths of his sister and his father. Because he was in custody, he was unable to attend the funerals of either of these members of his family.

1. Whether the applicant is allowed to participate in programs administered by the Drug Court and in what prison he is incarcerated are matters that are beyond this Court's jurisdiction. Nonetheless this Court recommends that he be permitted to participate in such programs, if possible, since this may advance his prospects of rehabilitation and reduce the chance of recidivism on release.

Conclusion

1. In my view, for the foregoing reasons, the applicant has neither demonstrated any error, nor have the individual and total sentences been shown to be manifestly excessive.

1. Accordingly, leave to appeal should not be granted.

Orders

1. Leave to appeal refused.

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