R v Maxwell

[1999] NSWCCA 298

CITATION:	R v Maxwell [1999] NSWCCA 298
FILE NUMBER(S):	CCA 60253/98
HEARING DATE(S):	15/9/99
JUDGMENT DATE:	15 September 1999
PARTIES :	Isaiah Maxwell Regina (NSW)
JUDGMENT OF:	Wood CJ at CL; Simpson J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/51/0060
LOWER COURT JUDICIAL OFFICER:	Ducker DCJ

COUNSEL:	R. Ellis for Crown Applicant in person
SOLICITORS:	S.E. O'Connor T.A. Muprhy
CATCHWORDS:	CRIMINAL LAW - sentencing - appeal against sentence for various stealing offences - whether raises question of general principle - whether sentence excessive
DECISION:	Leave to appeal granted. Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60253/98

WOOD CJ AT CL
SIMPSON J

WEDNESDAY 15 SEPTEMBER 1999

REGINA v ISAIAH MAXWELL

JUDGMENT

1   WOOD CJ AT CL: We grant leave to appeal. The appeal is, however, dismissed.
2 The Court is of the unanimous decision it does not raise any question of general principle. Pursuant to s 21A of the Criminal Appeal Act 1912, the Court's reasons in short form are as follows. 3 The applicant stood for sentence in respect of four counts of break, enter and steal on the indictment with a further fifteen offences of the same nature to be taken into account pursuant to s 21 of the Criminal Procedure Act, along with two counts of receiving, and one each of possession of property stolen outside the State, goods in custody, and possession of cannabis. 4 Before their arrest the applicant and a co-offender embarked on a series of offences, breaking and entering domestic or commercial premises and stealing goods which they subsequently disposed of to known receivers. The value of the property stolen was $59,000, of which property the value of $17,500 was recovered. 5 The maximum sentence applicable to each offence of break, enter and steal was penal servitude for fourteen years. 6 On the first count, taking into account the Form 1 offences, the applicant was sentenced to penal servitude for four years, made up of a minimum term of two years and three months, and an additional term of one year and nine months. On the remaining counts the applicant was sentenced to fixed terms of penal servitude to be served concurrently with the sentence imposed in relation to the first count. 7 The applicant, who appeared unrepresented, argued that insufficient weight had been given to:

(i) his youth (he was 21 at the time of the offence);

(ii) his prior good record (he had in fact appeared in theChildren's Court in relation to offences of dishonesty including one count of break, enter and steal, and drug charges;

(iii) his co-operation with police once apprehended;

(iv) his own attempts at rehabilitation, particularly by attending drug and alcohol courses; and

(v) the impact of his incarceration on his two year old daughter who was in his care.

8   All these matters were given appropriate weight by the sentencing judge and the last of the those matters is not to be taken into account for the purposes of sentencing save in the presence of exceptional circumstances. 9   The level of the applicant's criminality was very high, having regard to the number of offences committed over a short time, the degree of planning that accompanied them, and the value of the property involved. 10   In the circumstances the sentence imposed was not shown to be excessive. 11   The appeal accordingly is dismissed.

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