Regina v Jana Malik

[2005] NSWCCA 334

CITATION:	REGINA v Jana MALIK [2005] NSWCCA 334
HEARING DATE(S):	12 September 1005
JUDGMENT DATE:	12 September 2005
JUDGMENT OF:	Mason P at 1; Grove J at 11; Buddin J at 12
DECISION:	Leave granted; Appeal against sentence dismissed

CATCHWORDS:	Appeal against sentence - break and enter offences - aggregate non-parole period greater than 75 percent of aggregate head sentences - s44(2) Crimes (Sentencing Procedure) Act 1999 - trial judge did not impose such a sentence inadvertently - no reason in law for a lesser sentence to be imposed. (ND)
PARTIES:	REGINA Jana MALIK
FILE NUMBER(S):	CCA 2005/986
COUNSEL:	Applicant: R J Button Respondent: P G Ingram
SOLICITORS:	Applicant: S E O'Connor (Legal Aid Commission) Respondent: S Kavanagh (Public Prosecutions)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 04/11/0675
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ

CCA 2005/986

MASON P
GROVE J
BUDDIN J

Monday 12 September 2005

REGINA v Jana MALIK

Judgment

1 MASON P: The applicant tenders a single ground in her proposed appeal against sentence. She submits that, as a result of cumulation, the sentencing judge erroneously imposed an aggregate non-parole period greater than 75 percent of the aggregate head sentences.

2 The applicant pleaded guilty to two counts in the indictment, each involving breaking and entry of a dwelling house and the theft of items of valuable personal property. Each offence contravened s112(1) of the Crimes Act and attracted a maximum penalty of 14 years imprisonment.

3 The applicant was detected by fingerprints and DNA evidence. She pleaded guilty to both matters in the District Court. Aged 34 at the date of sentence, she had a very long-standing addiction to heroin that had led her to commit offences of varying degrees of seriousness over many years. She had previously served sentences of full time imprisonment on a number of occasions. The sentencing judge, Judge Armitage, correctly regarded the offences as serious and found that there was nothing in the offender's record that was of any assistance to her.

4 In his Honour's abbreviated extempore reasons, the sentencing judge addressed various matters as required by s21A(2) of the Crimes (Sentencing Procedure) Act 1999, having regard to the plea of guilty and to the "great assistance" as documented in a letter provided to the judge. His Honour indicated that the 50 percent discount of an otherwise appropriate penalty was appropriate. The judge stated that in his view, there were no special circumstances present in the particular case. He proceeded to sentence in the following terms:

Jana Malik, for the offence at Sydenham I sentence you to a fixed term of imprisonment to date from today, 19 November 2004 to expire on 18 August 2005. I decline to set a non-parol period. I do that because I intend imposing a partly cumulative sentence.

For the offence at Leumeah, I sentence you to a non-parole period of imprisonment of nine months to date from 19 May 2005 and to expire on 18 February 2006.

I sentence you to a total term of imprisonment of twelve months to expire on 18 May 2006.

On 18 February 2006, subject to the provisions of the Crimes (Sentencing Procedure) Act 1999, you will be released on parole.

5 The applicant had originally pleaded guilty before the Chief Judge of the District Court. The proceedings were adjourned for presentence reports. The sentencing proceedings were heard on 19 November 2004, the applicant being represented by a solicitor. In the course of debate, the sentencing judge asked the Crown Prosecutor if he were suggesting that the sentences should be at least partly cumulative. Mr Laffan said:

One of the arguments there would be this, that if they were to be partly cumulative, that is best served if the prisoner can somehow be put on a longer – if that assists, in allowing the prisoner to be on a longer parole period. If it's to keep her in custody for a longer period of non-parole, I wouldn't think that would be of any assistance. Sadly your Honour, if your Honour, as your Honour has done, thumbed through her criminal history… you will see a range of offences and a range of custodial sentences which have been imposed, none of which seem to have had a lasting effect.

6 His Honour indicated to the legal representatives the sentences he was minded to impose, asking them to comment if they felt inclined to do so. He referred specifically to the fact that the balance of the sentence not covered by the aggregate non-parole period would be three months. Each representative indicated that he wished to put nothing further.

7 The overall effect of the two sentences is that the second was partially cumulative to the extent of six months upon the first sentence. It can also be seen that the aggregate head sentence is 18 months with a non-parole period of 15 months. This means that the ratio between the aggregate non-parole period and the aggregate head sentence is greater than 75 percent. If the statutory ratio had been maintained, the aggregate non-parole period would have been 13 months and two weeks, a difference of six weeks.

8 Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 did not, however, prevent a non-parole period being more than three quarters of the term of the sentence, nor did it require reasons to be given for any such departure. It would appear that the sentencing judge had uppermost in his mind the imposing of a custodial sentence that reflected the seriousness of the sentences in light of the applicant’s record and the guarded prognosis for reformation. The applicant's failure to complete rehabilitation programs amply supported the decision not to find special circumstances.

9 I am quite unpersuaded that the sentencing judge had inadvertently imposed an aggregate non-parole period in excess of three-quarters of the total sentence. On the contrary, I am persuaded that the aggregate non-parole period was set in the present case after having appropriate regard to the objective seriousness of the offence, the total of the criminality for which the applicant was to be sentenced, the subjective circumstances and the perhaps generous combined discount allowed for the combination of the plea of guilty and the assistance to the authorities. I am also not satisfied that some less severe sentence was warranted in law than that imposed.

10 For those reasons, I propose that leave be granted but that the appeal against sentence be dismissed.

11 GROVE: I agree.

12 BUDDIN J: I also agree.

13 MASON P: That is the order of the court.

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