R v McRae
[2005] NSWCCA 13
•25 February 2005
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v McRae [2005] NSWCCA 13
FILE NUMBER(S):
2004/2407
HEARING DATE(S): 4/2/05
JUDGMENT DATE: 25/02/2005
PARTIES:
Regina (Respondent)
Steven Ronald McRae (Applicant)
JUDGMENT OF: Dunford J Bell J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/21/3170
LOWER COURT JUDICIAL OFFICER: Sides DCJ
COUNSEL:
B Knox SC (Crown)
H Dhanji (Applicant)
SOLICITORS:
S Kavanagh
SE O'Connor (Applicant)
CATCHWORDS:
LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
DECISION:
Time for filing the notice of appeal extended to 21 September 2004
Application for leave to appeal granted
Appeal be dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2004/2407
DUNFORD J
BELL JFriday 25 February 2005
Regina v Steven Ronald McRae
Judgment
DUNFORD J: I agree with Bell J.
BELL J: This is an application for leave to appeal against sentences imposed on the applicant in the District Court at Campbelltown by his Honour Judge Sides QC (the Judge) on 23 February 2004.
The applicant was convicted of six counts of break, enter and steal contrary to s 112(1) of the Crimes Act 1900. The Judge took into account six further offences of break, enter and steal and one offence of attempted break, enter and steal on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act).
On counts two to six, the applicant was sentenced to concurrent terms of four and a half years’ imprisonment. A non-parole period of three years was specified. These sentences were backdated to commence on 24 September 2001. For the offence charged in count one, for which the further seven offences were taken onto account, the applicant was sentenced to a term of seven years’ imprisonment to date from 24 March 2003. A non-parole period of four years was specified. In the aggregate, the applicant was sentenced to a term of eight and a half years’ imprisonment with a non-parole period of five years commencing on 24 September 2001.
The maximum penalty for an offence contrary to s 112(1) of the Crimes Act is imprisonment for fourteen years.
The offences spanned a period of seven and a half months between 20 January 2001 and 2 September 2001.
There is no issue concerning the facts upon which the applicant was sentenced. The Crown has summarised them in written submissions and it is convenient to refer to that summary:
“(a) 20 January, 2001, break enter and steal at the Nowra Golf Club, Nowra. $2795 in cash was stolen and considerable damage to the property caused (estimated to be $1928).
(b) 27 February 2001 - break, enter and steal at Southern Rural Traders (Horseland), Moss Vale. Horse-related equipment valued at $11,320 was stolen. Damage was occasioned to the premises in the sum of approximately $300.
(c) 17 March 2001 – break, enter and steal at Chilwood Grove, Berrima. Approximately $21,051.95 in property was stolen. There was also additional damage to the property of $4000.
(d) 1 July 2001 – break, enter and steal at the Callala RSL Country Club, Callala as a result of which $11,858 in cash was stolen together with alcohol to the value of $565. Damage to the property was caused to the value of approximately $3,293.70.
(e) 1 September 2001 – break, enter and steal at the Callala RSL Country Club, Callala Bay. Approximately $19,157 was stolen. Damage was caused to the premises to the value of $3,457.50.
(f) Between 19 May, 2001 and 20 May 2001 – break, enter and steal at the premises of the Duke’s Shell Garage, Mudgee Road, Lidsdale. Property valued at approximately $7000 was stolen and damage sustained to the premises totalling $3,500.”
The modus operandi was similar in each of the offences. The applicant disabled the Telstra Service Pit wiring connections to the telephone alarm systems in each of the premises. The alarms were deactivated or rendered inoperative. The applicant then forced his way into the premises. Substantial damage was caused in the course of gaining entry or during the stealing of the subject property.
The seven offences taken into account on the Form 1 were committed over the period April 2001 to September 2001. Each was in the Moss Vale, Southern Highlands and South Coast area of New South Wales. Substantial damage was caused to the properties broken into in these instances. The modus operandi for each of these offences was the same as that for those to which the applicant pleaded guilty.
The total value of the property stolen in the offences the subject of the counts in the indictment was approximately $76,271 and the total amount of damage done in the course of the offences was approximately $15,000. The offences taken into account on the Form 1 involved the theft of property in an amount of approximately $13,239 and property damage in an amount of $33,289. None of the cash and very little of the property stolen has been recovered.
The applicant entered pleas of guilty to each of the offences in the Local Court. There was a defect in the document prepared under s 51 of the Justices Act 1902, and he was arraigned on indictment in the District Court. The Judge allowed a discount of twenty-five percent to reflect the utilitarian value of the pleas.
The applicant was charged with these offences in January and June 2003. At the time he was in custody serving sentences imposed for unrelated offences.
On 18 November 2002 the applicant was sentenced in the Penrith Local Court for a number of offences, including firearms offences, goods in custody, contravening the conditions of an apprehended domestic violence order, driving offences and two counts of breaking, entering and stealing. He was sentenced to terms of imprisonment for a number of these offences. In each case the sentence was expressed to commence on 24 September 2001. The longest term of imprisonment, imposed for one of the break, enter and steal offences, was two years with a non-parole period of eighteen months.
The sentences imposed by the Judge wholly subsumed those imposed in the Local Court at Penrith.
The applicant was on a s 9 bond at the date of the commission of the offences that were committed before 5 June 2001.
The applicant was arrested in connection with other matters on 11 June 2001 and released on bail. Six of the offences the subject of the current proceedings were committed after that date, when the applicant was on bail.
The applicant had a lengthy criminal history. He was convicted of false pretences and fined in 1981. He was convicted of obtaining a benefit by deception in 1984 and placed on a recognizance to be of good behaviour for three years. In 1986 he was convicted and fined for two counts of stealing. He was again convicted and fined for stealing in 1988. There followed an interval of seven years in which he was not in conflict with the law. In January 1995 he was convicted of two counts of malicious damage and a PCA offence. He was fined in relation to each matter. In March 1995 he was convicted and fined for the offence of larceny as a servant. In May 1995 he was convicted of assault and resisting arrest for which offences he was released on a recognizance and fined. In July 1995 he was convicted of a number of domestic violence offences and sentenced to concurrent terms of two months’ imprisonment. There was a further interval in the applicant’s record of offending between 1995 and 2000. In June 2000 the applicant was convicted of assault and resisting police and placed on a s 9 bond for a period of twelve months for the assault and fined for the resisting offence. In July 2000 the applicant was convicted of receiving and sentenced to a term of four months’ imprisonment. That sentence expired on 17 November 2000. A little over two months later the applicant embarked on the present series of offences.
The applicant gave evidence at the sentence hearing. A pre-sentence report and the report of Dr Allnutt, a psychiatrist, were also in evidence. The applicant had written letters to each of the victims of his offences expressing his remorse for his offences and copies of these letters were tendered on his behalf. A report by Mr Powrie of the Corrective Services Industries was tendered on the applicant’s behalf. It attested to the applicant’s hard work over the twenty-one months that he had been in custody.
At the date of the offences the applicant was aged forty years. He was forty-three at the date of sentence. He comes from a large family. There had been difficulty in his relationships with some of his siblings and with his mother. His parents separated when he was in early adulthood. He experienced feelings of not being appreciated by his family. His relationship with his mother had been resolved prior to her death in November 2001.
The applicant left school at the age of fifteen, having failed to complete Year 9. He commenced working with his father, as a truckie’s offsider. In the years that followed he held a variety of jobs, including as truck driver and as a horse trainer.
Significant to an understanding of the applicant’s history, is that he has been involved in two fatal motor accidents. In 1980 a man had committed suicide by throwing himself in front of the applicant’s vehicle. In 1987 an acquaintance was killed in a head on collision with the applicant’s vehicle. The applicant was not at fault in either instance but nonetheless he ruminated with feelings of guilt, particularly about the 1987 accident. These feelings were exacerbated by the fact that the deceased died leaving two children. The Judge found that these two incidents had caused the applicant considerable anxiety and that it was likely that he had become depressed following the 1987 accident. There was evidence that the applicant had been admitted to the St John of God Hospital after the accident and placed on anti-depressant medication. In the following years the applicant has been prescribed Prozac which, when discontinued, has resulted in a deterioration in mood.
The Judge took into account evidence of the applicant’s history of suicide attempts, including that he crashed his motor vehicle into a tree on one occasion, overdosed on another and that he had purchased a gun with the intention of shooting himself.
The Judge also took into account the report of Dr Allnutt, noting that the applicant had been diagnosed as suffering from psychotic depression in the past and that, in the main, his symptoms had resolved towards the end of 2001.
The Judge referred to the applicant’s history of alcohol and drug abuse. He found that following the accident the applicant had commenced to abuse alcohol and cannabis and that he had progressed to the use of amphetamines. In this latter regard, the Judge observed that the amphetamine use had been connected with his need to stay awake while working as a truck driver. Following a brief period of incarceration in 1995, the applicant started using heroin. He had a period of being drug free while he was spending time with his mother but he had resumed his drug use as the result of an association with persons living in the local area.
The applicant was using drugs, including heroin and amphetamines, at the time of the commission of the subject offences. The Judge found that apart from one relapse, the applicant had remained drug free since coming into custody and that he had a creditable work history in custody. The applicant was receiving drug and alcohol counselling and psychiatric and psychological assistance while in custody.
The applicant married in 1982 and had three children by that relationship. The children were aged between twelve and twenty years. The relationship had broken down in 1991 and the couple had since divorced. The applicant remained in contact with his children and his former wife remained supportive of him.
In early 2000 the applicant had formed a new relationship. His partner had given birth to a child after he was taken into custody. The applicant gave evidence that he proposed taking responsibility for the child following his release from custody.
Around the time of the applicant’s arrest he had overcome the difficulties in his relationship with his siblings, a number of whom had visited him in custody and were supportive of him. One of his sisters was prepared to offer him accommodation upon his release.
The Judge referred to the applicant’s criminal history noting that he had been released on bail in February 2002 and that he had spent a period of time in the William Booth Rehabilitation program. The sentence imposed by the Penrith Local Court on 18 November 2002, which was expressed to commence on 24 September 2001, encompassed the period during which the applicant had been resident in the William Booth program. His Honour noted that while one of the break, enter and steal offences was an offence for which the applicant had been charged on 3 June 2002, in the main the other offences dealt with by Penrith Local Court were offences for which the applicant had been charged in 2001. His Honour approached the matter upon the basis, that putting to one side the offence charged in 2002, the offences of dishonesty for which the applicant had been sentenced by the Local Court had been committed during the same period as those with which he was concerned.
Taking into account the work reference, the family support and the applicant’s employment history, the Judge assessed the applicant’s prospects of rehabilitation as being good. This finding was expressed to be subject to the applicant’s ability to remain drug free and to continue to access appropriate professional, including psychiatric, assistance.
Ground one - The sentencing Judge erred in failing to properly take into account the applicant’s mental disorder.
Counsel relied in support of this ground on the report of Dr Allnutt and, in particular, to the Doctor’s summary of the applicant’s previous psychiatric history:
“With his consent I had the opportunity to review his Correctional Health Service file. He was seen by a psychiatrist on 29 September 2001 having been referred to the psychiatrist by the risk intervention team because he was experiencing suicidal ideation. He reported that he ruminated about his past with feelings of guilt and shame and at that stage felt hopeless and helpless. On that occasion he was hearing voices telling him to hang himself. A diagnosis of possible psychotic depression was made and he was commenced on Risperidone 2mg at night. He was then seen on 8 October 2001. The Risperidone was discontinued and he was commenced on Prozac (antidepressant). However on 26 October 2001, the psychiatric registrar because of irrational behaviour observed by staff reviewed him. In the interview with the registrar he said he felt depressed because he had never recovered from the motor accident that occurred thirteen years earlier. He was hearing voices and said he had been hearing voices for six months prior. The diagnosis of acute psychosis was made at that stage. By 19 December 2001 he manifested resolution from all symptoms.”
In counsel’s submission, it was to be noted that many of the offences had been committed in the six-month period prior October 2001 when the diagnosis of acute psychosis had been made.
Counsel also pointed to the applicant’s criminal history, submitting that it was somewhat unusual: he was forty years old at the date of the offences and (putting to one side the four month sentence imposed in respect of the receiving conviction in 2000) had not been in trouble since 1995. Prior to this time there had been a further lengthy offence-free interval. This history was said to support the conclusion that there was a link between the applicant’s mental disorder and his offending.
While the Judge referred to the applicant’s history of depression, it is submitted that his Honour did not appreciate that “the symptoms of psychotic depression manifested themselves over much of the period over which the offences were committed”. Counsel contended that the Judge erred in not finding that the applicant’s culpability was significantly reduced by reason of his psychiatric illness.
At the date of his report in October 2003 Dr Allnutt considered the applicant to be suffering from residual symptoms of a major depressive disorder. In Dr Allnutt’s opinion the applicant has suffered from recurrent depressive episodes that commenced following the 1987 motor vehicle accident. Dr Allnutt observed of the accident:
“This incident likely triggered the onset of a depressive disorder with some mild post-traumatic symptoms that have continued to date. Aggravating his presentation has been an attempt to self-medicate the depressive symptoms with the use of drugs. It is notable that prior to the second accident your client denied any form of substance abuse. Following the accident he has experienced further losses including unemployment, loss of business, and in the context of substance abuse, the breakdown in his marriage.”
Dr Allnutt did not express the opinion that the offences, or any of them, had been committed at a time when the applicant was suffering from acute psychosis. His opinion concerning the association between the applicant’s depressive disorder and his offending behaviour was set out at page 6 of his report:
“The alleged offences were in my view driven by an underlying addiction to heroin and a need to procure finances in order to fund that addiction. It is reasonable to infer a connection between his depressive disorder, the 2 accidents he was involved in; and the onset and perpetuation of substance abuse. In my view he likely was suffering symptoms of a depressive disorder and withdrawal from substances at the time of the offence.
It is notable that your client takes full responsibility for the offences and voices regret and remorse at the offences. He also voices remorse and regret at the lost years and the impact that incarceration has had on his family. He is motivated he tells me to remain abstinate from substances as he has for the last two years in prison, and to capitalise on his relationship with his family.”
The applicant’s case was that he accepted responsibility for the offences. He gave no evidence of psychotic disturbance by way of explanation for the commission of the offences. There was no evidence that he was psychotically depressed over the whole, or any part of, the seven and a half months during which the offences were committed. No submission was advanced to the Judge that the applicant should be sentenced on the basis that he suffered from a mental disorder such that his moral culpability was reduced or so as to make him an inappropriate vehicle for general deterrence; R v Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; R v Letteri (NSWCCA unreported, 18 March 1992).
In R v Wright (1997) 93 A Crim R 48 Hunt CJ at CL observed at 50-51:
“It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others (Anderson [1981] VR 155 at 160-161; Scognamiglio (1991) 56 A Crim R 81 at 86). In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied (Anderson (at 160); Letteri (unreported, Court of Criminal Appeal, NSW, 18 March 1992, pp 12-13). Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender’s mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case (Currie (unreported, Court of Criminal Appeal, NSW, 25 February 1992), p 4; Letteri (pp 13-14)). The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding (Champion (1992) 64 A Crim R 244 at 254-255). The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case (ibid at 255). But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great (Curtis (unreported, Court of Criminal Appeal, 13 November 1987), pp 3-4. See also Bus (unreported, Court of Criminal Appeal, NSW, 3 November 1995), pp 6-7; Engert (1995) 84 A Crim R 67 at 68).”
The Judge sentenced the applicant upon the basis that the offences were committed with a considerable degree of premeditation and that they displayed a degree of professionalism. Looking at the period over which they were committed and the repeat nature of the applicant’s offending, the Judge found that “it is clear that he had entered the league of being a professional thief who carried out his trade by breaking into premises and stealing from them” (ROS 8-9). There was a deal of material to support that finding. It has not been challenged. There was nothing to suggest that the applicant’s recurrent depressive disorder operated to affect his moral culpability for his offending in the sense of affecting his ability to appreciate the wrongfulness of his conduct. I accept the Crown’s submission that the degree of premeditation and professionalism in the manner in which the offences were committed, the amount of property stolen and the repetition of the conduct over the period of more than seven months militate against a finding that the applicant was mentally impaired in any relevant sense.
Ground two – the sentencing Judge erred in failing to adequately discount the applicant’s sentence on the basis of the applicant’s assistance to the authorities in the admission of his guilt of the offences and the naming of co-offenders
The applicant made admissions with respect to one of the offences in an interview with police on 15 January 2003. He was questioned about a number of the other offences during this interview. The police officer squarely put to him during the interview her belief that he had been involved in the commission of the offences. The applicant denied involvement in all save the break, enter and steal offence on the Dukes Garage.
In a second electronically recorded interview conducted on 10 June 2003, the applicant confessed his involvement in the other offences. Counsel submitted that the only evidence available to the police apart from his confessions were:
(i) count one – a sighting of the applicant’s motor vehicle outside the subject premises in the early hours of the morning when the offence appeared to have been committed;
(ii) offence four on the Form 1 – the applicant was spoken to by the police a number of weeks after the commission of this offence. At the time he was in possession of a large quantity of chocolate bars that were consistent with being part of the proceeds of the theft. In March 2003 his de-facto wife was in possession of property that had been taken during the course of this theft. She told the police that the applicant had given it to her in the week after the offence was committed;
(iii) offence seven on the Form 1 - DNA consistent with the profile of the applicant’s DNA was found at the scene of the offence.
The applicant submits that the inference to be drawn from the fact that he was not charged with these offences until two years after their commission is that such evidence as was available to the police was insufficient to support a conviction in the absence of his confessions.
In his interview conducted on 10 June 2003 the applicant told the police:
“I have sort of wanted to sit down and talk about them and come out with the truth because I’ve got to get it off my chest. Um, I know I’ve got to accept the punishment, and it’s coming, but to cover up the fact of who was with me or the fact of the jobs that I’d done, it’s just creating one lie to cover another, over and over and I can’t cope with it anymore. Um, I’m finally drug free and I want to stay that way.”
The applicant relies on the frequently cited observations of Street CJ in R v Ellis (1986) 6 NSWLR 603 at 604 in support of his submission that his disclosure of guilt that could not otherwise have been established entitled him to a discount in addition to the credit that the Judge gave to him for his contrition. Counsel also submitted that the applicant’s assistance went beyond the disclosure of his own guilt in that he nominated his co-offenders.
The applicant was first interviewed in connection with these offences on 15 January 2003. This was seven months after the co-offender, Craig Ross, was convicted in respect of the break, enter offence at the Callala RSL committed on 1 September 2001. The applicant denied the commission of any offences with Ross and denied involvement in that offence. He denied the commission of any offences with Simon Baguley. It was in the second interview conducted on 10 June 2003 that the applicant admitted his guilt of the other offences and implicated Craig Ross and Simon Baguley.
The applicant does not contend that the information he supplied concerning his co-offenders was of utility. It is advanced as tending to show that by the interview in June 2003 his disclosures were full and frank. This is the way the Judge approached the matter, accepting that the applicant was contrite and that he possessed good prospects of rehabilitation. Bearing in mind the applicant’s criminal record and history of substance abuse and the circumstances of the commission of these offences, this was a favourable finding.
The Crown did not take issue with counsel’s submissions as to the evidence that was available to the police absent the applicant’s admissions. In the Crown’s submission, the case is well removed from Ellis. The applicant’s confessions were not of offences of which his guilt was unsuspected. He was a prime suspect and knew himself to be one. He was aware that the police were pursuing inquiries directed at proving his guilt and this may have motivated him to come forward in mid-2003 and obtain such benefit as he could from making a clean breast of matters.
The Judge allowed a maximum discount for the utilitarian value of the pleas of guilty and further reduced the sentences that would otherwise have been imposed to reflect his acceptance that the applicant was contrite.
The only reference that the Judge made to the significance of the applicant’s confessions was in these terms (at ROS 2.5):
“So far as the issue of contrition is concerned it is difficult, on the evidence before me, to determine with any degree of precision the strength of the Crown case absent the Offender’s admissions. Those admissions were in the main, belatedly made in June of last year. The Offender has written to the victims of the offences apologising to them. Again it would appear that this is a matter that has occurred relatively recently. I accept his expressions of remorse as being genuine, but I think it important to emphasise that it is somewhat belated. Nonetheless it is appropriate that that be taken into account and the sentences have been reduced to reflect that aspect of the matter.”
That his Honour only considered the confessions as bearing on the question of contrition is evident from the rider that they were belated. Counsel’s contention is that his Honour erred in overlooking their value to the administration of justice.
It does not appear that the Judge was invited to approach the matter on the basis now relied upon. The Judge did not overlook the question of the significance of the applicant’s admissions to the Crown’s case. He observed that he was not able to determine the strength of the Crown case absent the admissions. The submission now made (that there was no evidence to establish the applicant’s guilt other than the three items set out at [40] above) was not advanced before the Judge. No submission was made that the Crown would have been unable to prove guilt without the confessions.
There can have been no forensic advantage in the applicant’s legal representative not seeking to demonstrate that his confessions had, in the majority of cases, provided the only evidence against him. Assistance to the authorities with respect to the investigation of the offence and the usefulness of it are matters to which s 23 of the Sentencing Procedure Act directs attention. In light of the Crown’s concession (that the police did not have available evidence other than that set out at [40] above) I consider that the applicant has made good a challenge that the proceedings miscarried. The Judge was left to approach the question of the relevance of the applicant’s confessions as only relevant to contrition and not as amounting to voluntary disclosure of guilt that might otherwise have remained unproved.
In the Crown’s submission the Court would not intervene even if this ground was made good, since no lesser sentence was said to be warranted in law: s 6(3) Criminal Appeal Act 1912. It is appropriate to return to this issue after dealing with the applicant’s third ground.
Ground three - The sentence is, in all the circumstances, manifestly excessive.
The applicant contends that in making allowance for the discount, his Honour’s notional starting point must be taken to have been an effective sentence of eleven years and three months. This is submitted to be manifestly excessive when regard is had to the applicant’s recurrent depressive condition, his admissions in the June 2003 interview and his pleas of guilty.
The Crown submitted that the applicant’s criminality was enhanced by the presence of a number of the factors to which the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 at [48] per Grove J (with whose judgment Spigelman CJ and Sully J concurred) directs attention:
§ “Breaches of conditional liberty;
§ degree of professional planning, organisation and execution;
§ prior record for like offences;
§ in several cases, vandalism and significant property damage;
§ multiplicity of offences including the Form 1;
§ in some instances, repeat incursions to the same premises; and
§ monetary value of the property stolen.”
In particular, the circumstance that these offences were committed while the applicant was on bail or the subject of a s 9 bond was a matter that seriously aggravated the offences.
With respect to the sentence imposed for the offence charged in count one it was necessary for the Judge to take into account the matters on the Form 1. The Form 1 itemised seven like offences. The applicant accepts that the partial cumulation of the sentence for this offence was in the circumstances appropriate.
The structure of the sentences was one that was favourable to the applicant. The sentences imposed for the offences charged in counts two to six were backdated to the commencement of the applicant’s imprisonment for two unrelated offences of break, enter and steal. The longest non-parole period in respect of the sentences for the unrelated offences was eighteen months. As I have noted, the Judge considered that certain of the offences dealt with in the local courts had been committed in the same period as the subject offences. This may explain why the Judge determined to backdate the sentences for the offences charged in counts two to six. It remains that the effect of this determination was to wholly subsume the sentences imposed on the earlier convictions in the sentences imposed for the subject convictions. Further, as the Crown submits, the sentences in relation to counts two to six were made wholly concurrent notwithstanding that they were imposed in respect of offences committed against different victims and separated in time over a number of months. Such an approach has been criticised: R v KM [2004] NSWCCA 65 per Miles AJ at [55]-[56] (with whose judgment Santow JA and James J agreed). In these respects the Judge extended a very considerable measure of leniency to the applicant. Given the number of offences, their objective seriousness and the circumstance that all were committed in breach of conditional liberty, I consider that the claim of manifest excess cannot succeed.
I return to the question of the applicant’s voluntary disclosure of his guilt of these offences. As the Crown submitted, this case is considerably removed from Ellis. The applicant was suspected of commission of the offences and knew that the police were pursuing inquiries in this respect. Nonetheless the assistance that he rendered by his confessions was significant. However, s 23(3) of the Sentencing Procedure Act requires that a lesser penalty imposed under the section not produce a sentence that is unreasonably disproportionate to the nature and circumstance of the offence. When regard is had to the structure of the sentences and the leniency that this produced, I have concluded that this Court should not intervene to re-sentence the applicant. In my view, no lesser sentence is warranted in law than the individual sentences that were imposed by the Judge viewed individually and in their aggregate effect.
The notice of appeal was filed out of time. The reasons for this were sufficiently explained in the affidavit of David Phillip Barrow sworn on 27 January 2005. The Crown consented to the extension sought. For these reasons I propose that the time for filing the notice of appeal be extended to 21 September 2004, the application for leave to appeal be granted, but that the appeal be dismissed.
**********
LAST UPDATED: 25/02/2005
0
5
2