R v Maguire
[2004] NSWCCA 142
•5 May 2004
CITATION: R v Maguire [2004] NSWCCA 142 revised - 11/05/2004 HEARING DATE(S): 05/05/04 JUDGMENT DATE:
5 May 2004JUDGMENT OF: McColl JA at 1; Levine J at 8; Hidden J at 2 DECISION: Appeal allowed: Sentence on firearm charge directed to commence on 11 November, 2003. PARTIES :
Crown
Nathan MaguireFILE NUMBER(S): CCA 60117/04 COUNSEL: W Roser - Crown
R Hulme SC - ApplicantSOLICITORS: S Kavanagh - Crown
SE O'Connor - Applicant
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/31/0177 LOWER COURT
JUDICIAL OFFICER :Armitage DCJ
60117/04
Wednesday, 5 May, 2004McCOLL JA
LEVINE J
HIDDEN J
1 McCOLL JA: The Court need not call upon you Mr Hulme. Hidden J will deliver the first judgment.
2 HIDDEN J: After a trial in the District Court, the applicant was found guilty on a charge of supplying ecstasy. He also pleaded guilty to a charge of possessing a shortened firearm. On the drug charge he was sentenced to imprisonment for twenty months, with a non-parole period of fifteen months, to date from the day of his arrest in respect of both offences, 11 February 2003. On the firearm charge he was sentenced to imprisonment for eight months, with a non-parole period of six months to date from 11 February 2004. The effective overall sentence was imprisonment for twenty months with a non-parole period of eighteen months dating from 11 February 2003.
3 There is no need to recite the facts or the subjective material. It is sufficient to say that, despite the fact that the applicant had a criminal record which included prior convictions of a similar nature, the sentencing judge determined that he should be dealt with leniently. His Honour did so partly because of some mitigating features of the offences, which he identified, but primarily because of the applicant's relative youth and what were seen at the time of sentence as being good prospects of rehabilitation.
4 His Honour did not find special circumstances, and in respect of each charge he specified a non-parole period which is three-quarters of the head sentence. The problem is that, as a result of partial accumulation of the sentences, the effective non-parole period of eighteen months is ninety percent of the overall sentence of twenty months. The resulting parole period of two months is of virtually no utility, particularly in a case where it is in the interests of the community to foster the rehabilitation of an offender who is still in his early twenties. It is most unlikely that the experienced sentencing judge who dealt with the applicant intended this result.
5 This Court is constrained in remedying the situation because the total sentence will expire on 10 October 2004, a little over five months hence. Nevertheless, I am of the view that a parole period of five months would be beneficial and appropriate. This is the course urged upon us by senior counsel for the applicant and, in the unusual circumstances of this case, I would not consider that course to amount to tinkering, as the Crown prosecutor in this Court argued. I would achieve this by directing that the sentence on the firearm charge commence three months earlier than the date specified by his Honour, that is, on 11 November 2003. The applicant would then be entitled to release on parole next Monday, 10 May 2004.
6 Accordingly, I propose that leave to appeal be granted, that the appeal be allowed, that the sentence in respect of each charge be confirmed but that the sentence on the charge of possessing a shortened firearm be specified to commence on 11 November 2003. I would direct that the applicant be released on parole on 10 May 2004.
7 McCOLL JA: I agree.
8 LEVINE J: And I agree.
9 McCOLL JA: The orders of the Court will be as pronounced by Hidden J.
Last Modified: 05/12/2004
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