R-v-Fitzpatrick

[1999] NSWCCA 158

CITATION:	R-v-Fitzpatrick [1999] NSWCCA 158
FILE NUMBER(S):	CCA 060327/98
HEARING DATE(S):	28/05/99
JUDGMENT DATE:	28 May 1999
PARTIES :	Regina-v-John Peter Fitzpatrick
JUDGMENT OF:	Barr J at 12; McInerney AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0054
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ

COUNSEL:	Mr. Berman for the Crown The Applicant was in person.
SOLICITORS:	Mr. CK Smith for the Crown The Appellant was in person.
CATCHWORDS:
CASES CITED:	The Queen -v-Buckley
DECISION:	Leave to appeal refused.

IN THE COURT OF
CRIMINAL APPEAL

060327/98

BARR

McINERNEY AJ

FRIDAY 28 MAY 1999

REGINA v JOHN PETER FITZPATRICK

JUDGMENT

1    McINERNEY AJ: In this matter the applicant John Peter Fitzpatrick seeks leave to appeal against a sentence imposed on him by Freeman DCJ in respect to the larceny of a motor vehicle when he was sentenced to a penal servitude for two years with a minimum term of eighteen months to commence on 15 June 1998 and an additional terms of six months. In addition his Honour was asked to take into account form 1, another offence in relation to a motor vehicle. He pleaded guilty to these offences.

2    The facts are, shortly, that at the time he had recently travelled to Newcastle from Sydney and residing with a mate at a suburb when on 9 September 1997 he went to the Charlestown Square where he went to a Holden Torana sedan, opened the door using a key he had with him, started the vehicle and drove off. Thereafter in the next few days he travelled to Sydney where he removed the compliance plate and exchanged it with another compliance plate from a vehicle that he owned. He then removed the registration plates from the stolen vehicle and exchanged them for registration plates which belonged to his vehicle in Sydney. He later returned to Newcastle and has driven the vehicle for his own use. He told the police he intended to keep this vehicle for himself as it now displayed registration plates and compliance plates that were not reported stolen.

3    On 15/12/97 he went to Layman Street, Cooks Hill, went to a Holden Kingswood sedan, opened the locked door and drove the vehicle away using a spare key. He continued to use this car and on Wednesday 17 December 1997 the offender allowed a friend, known as Jamie, to drive the Kingswood sedan to a friend's address at Wallsend. When both the stolen Torana and the Kingswood arrived at the house the offender removed the centre console from the Kingswood and put it in the Torana.

4    About 11pm on 17 December 1997 the police from Wallsend saw the Kingswood, gave chase and lost the vehicle in bushland. Shortly thereafter the applicant drove into the same bushland driving the Torana and was arrested by the police. When arrested he only had a learner's permit and he admitted the offence to the police. His Honour described the offence, at p 2 of his remarks on sentence, as a cold-blooded one.

5    His Honour also noted that he has been no stranger to full-time custody. He appears to have escaped on at least one occasion. His Honour noted from his record that he sentenced him for breaking entering and stealing and the larceny of a motor vehicle in Forbes in November 1987.

6    The applicant himself before his Honour expressed the view that his record was not good but he claimed that since at least 1 April of this year he has changed his attitude having entered into a relationship involving a young woman and a very young child and he said he has not been in trouble since 1 April. He told his Honour he now had a business running some sort of a strip show and his intent on remaining on the right side of the law.

7    The basis of the application for leave to appeal was on the question of finding of special circumstances. He tells us that he has turned over a new leaf, that he has now settled down and has a family.

8    These matters were all before the sentencing judge who considered this question. He said this at p 3:

"He says he will turn over a new leaf. I am afraid the turning over of that leaf will have to be deferred until he is released from custody on this next occasion".

9    The applicant before us sought a reduction in his minimum term and an increase in his additional term to enable him to rehabilitate himself.

10    He referred us to a decision of The Queen v Buckley, a decision of a two judge court at the Court of Criminal Appeal on 24 March 1997. That case is clearly distinguishable from the case before us because in that case there was evidence that there was a chance of rehabilitation and no reference was made to that in the remarks on sentence.

11    That is not the case here. These were serious offences and in my view the sentence imposed by his Honour was well within the range of his discretionary judgment and in all the circumstances I would refuse leave.

12    BARR J: I agree. The order of the Court is as proposed by McInerney AJ.