Regina v McCann

[2003] NSWCCA 21

CITATION:	REGINA v. McCANN [2003] NSWCCA 21
HEARING DATE(S):	Monday 17 February 2003
JUDGMENT DATE:	17 February 2003
JUDGMENT OF:	James J at 22; Greg James J at 1
DECISION:	Application for leave to appeal granted; appeal dismissed.
CATCHWORDS:	Criminal law - sentence - appeal - multiple armed robberies - drug addict - youth - prospects of rehabilitation - no error.
LEGISLATION CITED:	N/A
CASES CITED:	Fernando [2002] NSWCCA 28 Pearce (1998) 194 CLR 610
PARTIES :	REGINA v. McCANN, Allen Leslie
FILE NUMBER(S):	CCA No. 60172 of 2002
COUNSEL:	Crown: D.M. Howard App: In person
SOLICITORS:	Crown: S.E. O'Connor App: In person

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0004
LOWER COURT JUDICIAL OFFICER :	Morgan, DCJ.

No. 60172 of 2002

JAMES, J.
GREG JAMES, J.

MONDAY 17 FEBRUARY 2003

REGINA v. ALLEN LESLIE McCANN

Judgment

1 GREG JAMES J: This is an application for leave to appeal against sentence brought in respect of sentences imposed by the learned District Court Judge in the sittings at the East Maitland District Court on 8 March 2002.

2 The applicant, Allen Leslie McCann, was at that time 21, having been born on 7 January 1981 and came forward for sentence on his pleas of guilty to four counts of armed robbery each of which was punishable by a maximum penalty of 20 years imprisonment and one count of being disguised with intent to commit an indictable offence for which the maximum penalty prescribed is seven years imprisonment.

3 In respect of the armed robbery counts the learned trial judge imposed upon him for the first three of those counts fixed terms of imprisonment of three years to commence on 6 November 2001 and to expire on 5 November 2004. On the offence of disguise with intent to commit an indictable offence there was imposed a fixed term of 12 months to commence on 6 November 2001. That sentence was thus concurrent with the sentences imposed on counts one, two and four, the first three armed robbery counts which sentences were themselves to be served as and between those offences concurrently.

4 On the fourth armed robbery her Honour imposed an overall sentence of six years imprisonment to commence on 6 November 2002 and to expire on 5 November 2008. That sentence comprised a non parole period expiring on 5 November 2005 of three years and a parole period of a further three years to commence on 6 November 2005.

5 The applicant had some prior criminal record including in the Children’s Court for an offence of break and enter with intent to commit felony. He has a record including offences involving larceny, assaulting and resisting police, motor vehicle offences and an offence of break enter and steal on which he was sentenced to nine months with a non parole period of six months to commence on 19 October 2001 at the Muswellbrook Local Court.

6 The short facts involving these offences were that on 26 August 2001 at the South Muswellbrook Cellars, armed with a knife, he committed the first of the armed robberies. Secondly, at the South Muswellbrook Bi-Lo Supermarket on 27 August, armed with a knife, he robbed that establishment. He was disguised with the balaclava on 30 August 2001 with intent to commit an indictable offence and on the same day at Muswellbrook he robbed the Eagle Boys Pizza Store while armed with a knife. The final robbery charge involved the robbery of Charters General Store, again whilst armed with a knife. These charges constituted a reign of terror against local retail establishments.

7 When he entered the South Muswellbrook Cellars he produced a knife to the serving lady demanding money, took $240 in cash and numerous packets of cigarettes, cut the phone line and on his way dropped the cash but left with the cigarettes.

8 On the following day at 9.45 pm he and another man entered the South Muswellbrook Bi-Lo. He was disguised with a balaclava and was wearing gloves, they were carrying knives. $3,539 in cash was taken from the two attendants and also a number of cartons of cigarettes were taken.

9 On Thursday 30 August at 9.21 pm he, with another person, entered the same store again wearing balaclavas and armed with knives. A security guard saw them, they saw him and ran but a little over half an hour later that night they entered the Eagle Boys Pizza Store wearing what appeared to be pillow cases and again armed with knives, demanded money and obtained $980 in cash from the attendant.

10 At 2.10 pm on the Monday, the accused, disguised with a balaclava and armed with a knife, attended the Charters General Store and when he was seen in the store the attendant in the shop ran into a rear office and the offender stole $350 from the till, ran from the store to a motor vehicle and the motor was driven away.

11 He was spoken to by the police some three months later and made full admission to his involvement in that last offence. He declined to answer questions in relation to the other offences but in due course pleaded guilty. He has been in custody since his arrest on 6 November 2001.

12 He was 21 when he came forward for sentence. His criminality had escalated considerably by the commission of these offences. The learned trial judge reviewed in detail that criminality with counsel then appearing and had regard to the letter that the applicant had provided to her setting out the background and the reasons why he said he had committed the offences and contending that he had realised what he had done was wrong and expressing his remorse and contrition.

13 The trial judge accepted he had been using drugs regularly and that the reason for the nine day crime spree was to get money to buy drugs. In the remarks on sentence, reference is made to the supportive relationship the applicant had with his mother, notwithstanding that his father had left home when he was only young and the stable Christian background that he had enjoyed.

14 There was material before the trial judge concerning the relationship he had formed with a young lady who was expecting his child. There was material by way of reference from the Gosford Christian School and the Gosford Christian Centre recognising his drug addiction but attesting to some prospects for his rehabilitation.

15 There was evidence before the trial judge that he had ceased his involved with drugs since he had been in custody and that he has had contact with Team Challenge and the Anglicare Life After Prison Ministry. Apparently he has also been placed on a Methadone programme and had originally attempted to go cold turkey.

16 Nonetheless, notwithstanding all of those matters that may auger well for his future rehabilitation whilst on parole and hopefully if he follows through with the intentions he expressed to the trial judge avoiding his future criminality and hence imprisonment, it is necessary for the courts to have regard to the fact that these were discrete serious criminal offences of violence within a short period of time thus producing overall a total criminality of great culpability.

17 The trial judge had regard to his relative youth and had regard to the involvement with drugs, but, understandably, having regard to the principles reflected in the Court of Criminal Appeal decision of Regina v. Fernando [2002] NSWCCA 28 and reflected in what the High Court had said in Pearce v. The Queen (1998) 194 CLR 610, had to impose, consistent with her duty, sentences of considerable severity. She took the course of making all but the sentence for the last armed robbery concurrent. The argument here that that sentence should have been concurrent too is one that cannot be accepted having regard to the fact that these were discrete criminal offences and having regard to what the High Court said in Pearce (supra).

18 Further, it was submitted that the parole period should have been greater. I am unable to accept that submission since having regard to all the circumstances it appears to me that what her Honour has done in recognising the total criminality and the accelerating criminality by the offender is nonetheless to recognise that some advantage might be gained from a shorter non parole period than the usual ratio and she took the course of imposing such a shorter period. I can see no basis on which any error on her part can be found, she having found special circumstances.

19 When I look at the totality of the sentences having regard to the way her Honour structured them I am unable to conclude she has in any respect fallen into any error of law or any error in the exercise of her discretion such as would warrant this court’s interference with the sentences.

20 Further, when I have regard to the total of the sentences I am unable to conclude that the sentences as a whole are anything other than lenient for the totality of the crimes committed, this I understand because her Honour was of the view that there might be some prospect for the offender in the future. He is of course entitled to come forward for consideration of his release on parole at any time after 5 November 2005.

21 In those circumstances I am of the view that the application for leave to appeal should be granted but the appeal should be dismissed.

22 JAMES, J: I agree with the Judgment that has just been delivered and the orders of the court will be as proposed by Justice Greg James.

HOWARD: May it please the court.

GREG JAMES, J: Mr. McCann, what the court has done in that judgment is to draw attention to those factors that might entitle you to get parole and to avoid further criminality even though you have been involved in the commission of so many so serious crimes, do you understand that? You have got about a year and half, a bit over a year and half to go towards your parole - two and half to go towards your parole. You might stand a chance a chance of getting it, do you understand that?

APPELLANT: I’ll get it, I’m doing the violence prevention programme soon.

GREG JAMES J: Keep it up.

APPELLANT: Thanks for your time. Have a good day.

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Last Modified: 02/24/2003