McKillop, Jamie Scott v The Queen - [2010] NSWCCA 126

New South Wales
Court of Criminal Appeal

CITATION: McKILLOP, Jamie Scott v R [2010] NSWCCA 126

HEARING DATE(S): 26 March 2010

JUDGMENT DATE:
11 June 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 3

DECISION: (i) Leave to appeal be granted;
(ii) Appeal be dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – sentence – break, enter and steal – aggravated break, enter and steal – 15 offences charged – 139 offences on Form 1 – no identifiable or manifest error – sentence reflects the number and seriousness of the offences

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Marshall v R [2007] NSWCCA 24
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152
R v Huynh [2005] NSWCCA 220
R v MAK; R v MSK [2006] NSWCCA 381
R v Ponfield, In the Matter of the Attorney-General’s Application (No 1) Under s26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; (1999) 48 NSWLR 327

PARTIES: Jamie Scott McKillop (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/11023

COUNSEL: R Button SC (Applicant)
M Cinque (Respondent)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11023

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 16 December 2008

2008/11023

McCLELLAN CJ at CL
JAMES J
ROTHMAN J
11 JUNE 2010

McKILLOP, Jamie Scott v R

Judgment

1 McCLELLAN CJ at CL: I agree with Rothman J.

2 JAMES J: I agree with Rothman J.

3 ROTHMAN J: Jamie Scott McKillop appeals a sentence imposed upon him by his Honour Judge Conlon SC on 16 December 2008. On that date, his Honour imposed an overall sentence of a non-parole period of 12 years’ imprisonment, as part of an overall sentence of 17 years. The overall sentence was imposed for 15 separate offences of break enter and steal and/or break enter and steal in circumstances of aggravation, contrary to s 112(1) and s 112(2) of the Crimes Act 1900. The maximum sentence for each of those offences is 14 years and 20 years respectively, with the aggravated offence carrying a standard non-parole period of 5 years’ imprisonment.

4 Mr McKillop is a professional burglar. The search warrant executed on his premises retrieved money and property in excess of $1.9 million, all of which had been stolen from a variety of premises. Apart from the 15 offences with which Mr McKillop was charged, he listed on a Form 1 to one or more offences, a further 139 offences, which he asked the sentencing judge to take into account in determining the appropriate sentence. 53 of those Form 1 offences (and offences 5, 6 and 7 on the indictment) were committed during the currency…

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.

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Details

Case: [2010] NSWCCA 126
Decision Date: 11 June 2010

CaseChat Overview and Summary

The appellant, Jamie Scott McKillop, appealed against his sentence for multiple offences of break, enter and steal, including aggravated break, enter and steal. The case was heard by the High Court of Australia. McKillop was charged with fifteen offences related to break, enter and steal, and his criminal history included 139 prior offences recorded on a Form 1. The legal issues before the court were whether the trial judge had erred in sentencing, whether the sentence was manifestly excessive or unjust, and if there was any identifiable error in the assessment of the offences' seriousness.

The High Court held that the trial judge had appropriately exercised his discretion in imposing a sentence that reflected the number and seriousness of the offences. The court found no identifiable or manifest error in the sentence, and concluded that the sentence appropriately accounted for the extensive criminal history of the appellant and the nature of the offences committed. The court also noted that the trial judge had considered the relevant principles in sentencing and had not erred in concluding that the sentence should be severe given the circumstances. The appeal was therefore dismissed, and the original sentence upheld.

The High Court did not order any changes to the sentence imposed by the trial judge. The court's decision affirmed the trial judge's assessment that the sentence was appropriate in the circumstances, and no further orders were made as a result of the appeal. The court's reasoning emphasised the importance of considering both the number and seriousness of the offences, as well as the offender's criminal history, when determining an appropriate sentence.

Orders