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

BATHURST CJ : I agree with Adamson J.

SIMPSON J : I agree with Adamson J.

ADAMSON J :

The Proceedings

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

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.

The sentencing judge determined that the sentence…

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 McGoldrick v Regina

Details

AGLC: McGoldrick v Regina [2012] NSWCCA 7
Case: [2012] NSWCCA 7
Decision Date: 13 February 2012

CaseChat Overview and Summary

The applicant in this case, McGoldrick, appealed against the sentence imposed by the sentencing judge and the refusal of the Drug Court to follow the sentencing judge's recommendation that McGoldrick be accepted into a compulsory drug treatment program. The applicant had pleaded guilty to multiple counts of break, enter and steal offences on residential properties. The applicant sought leave to appeal against the sentence on the grounds that they had not been adequately represented at sentencing and that the sentence imposed was too severe. The applicant further argued that the Drug Court's refusal to follow the sentencing judge's recommendation regarding the compulsory drug treatment program was an error of law.

The legal issues before the court were whether McGoldrick had been adequately represented at sentencing and whether the sentence imposed was too severe. The court also had to consider whether the Drug Court's refusal to follow the sentencing judge's recommendation regarding the compulsory drug treatment program was an error of law.

The court found that McGoldrick had been adequately represented at sentencing and that the sentence imposed was not too severe. The court held that there was no error of law in the Drug Court's refusal to follow the sentencing judge's recommendation regarding the compulsory drug treatment program. The court found that McGoldrick's legal representation had been adequate, as the lawyer had raised all relevant matters and made submissions on the appropriate sentence. The court also found that the sentence imposed was not manifestly inadequate or excessive. The court held that the Drug Court was not bound to follow the sentencing judge's recommendation regarding the compulsory drug treatment program and that the Drug Court had considered all relevant factors in making its decision. The court therefore dismissed the application for leave to appeal.

The court did not make any orders in relation to the application for leave to appeal.

Orders