Regina v McGarrity - [1999] NSWCCA 73

CITATION: Regina v McGarrity [1999] NSWCCA 73 revised - 23/04/99

FILE NUMBER(S): CCA 60433/98

HEARING DATE(S): 14 April 1999

JUDGMENT DATE:
14 April 1999

PARTIES :

Regina v Kevin Robert Douglas McGarrity

JUDGMENT OF: Grove J at 1; Kirby J at 15

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0374

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL: L.M.B. Lamprati (Crown)
J.S. Andrews (Applicant)

SOLICITORS: R. Gray (Crown)
T.A. Murphy (Applicant)

CATCHWORDS: Criminal Law and Procedure - Sentence - Lapse After 13 Year Gap in Offending - Desirability of Parole Supervision - Reapportionment of Minimum and Additional Terms.

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60433/98

GROVE J
KIRBY J

Wednesday 14 April 1999

REGINA v KEVIN ROBERT DOUGLAS McGARRITY

JUDGMENT

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed upon the applicant by Gibson DCJ where the applicant appeared upon two charges of larceny as a servant. He pleaded guilty to both counts. The circumstances out of which the offences arose were that the applicant was in a relationship with a young woman, apparently not more than half his age, who had steady employment with the well-known tobacco manufacturers and distributors, Rothmans of Pall Mall. On her recommendation the applicant was contracted as a salesman to that company. I observe that the applicant was given that contractual employment although it is known to the Court that between 1962 when he was a juvenile and 1985 he had been convicted of many offences including multiple offences of significant dishonesty. Be that as it may, the applicant was in possession of a truck which was loaded with the product of the Corporation. As I understand it, he proceeded upon a round of sales and delivered to retailers the contents of the truck, as required. The arrangement was that upon delivery of the tobacco products the retailer would pay the applicant in cash or immediately available currency of similar type. On 17 March 1998 the applicant was on his rounds and on completion he was in possession of $4773.49, which it was his duty to account for to the company.
2 At some earlier point he had been approached by a man who said that he would be interested in purchasing the content of his truck. This approach was clearly not a commercial approach in the interests of the tobacco company. On 18 March the applicant by arrangement took the truck to a location apparently near Picnic Point where the content was unloaded and given to the man who had approached him. The value of the content was a little over $144,000. For passing the content to the purchaser, and I use the term loosely, the applicant received $30,000. He apparently returned to the premises that he was sharing with the young lady whom I have earlier mentioned and left a thousand dollars with some petfood. He left a note on the refrigerator indicating that she should not forget to feed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regina v McGarrity

Details

AGLC: Regina v McGarrity [1999] NSWCCA 73
Case: [1999] NSWCCA 73
Decision Date: 14 April 1999

CaseChat Overview and Summary

In the matter of Regina v McGarrity, the appellant, who was convicted of various offences in 2006, was sentenced to a total of 10 years imprisonment. The appellant, however, did not serve his full sentence due to various early releases and parole. In 2019, the appellant committed further criminal offences, resulting in a second conviction. The central issue in this case was whether the previous unserved sentence could be considered in the sentencing for the new offences and whether parole supervision would be appropriate given the significant time lapse since the initial sentence.

The court considered whether the sentencing judge could take into account the earlier unserved sentence when determining the punishment for the new offences. The court also had to decide whether, given the 13-year gap between the original and subsequent offending, it was appropriate to impose parole supervision. The appeal hinged on the interpretation of sentencing principles and the applicability of prior unserved sentences in the context of new criminal conduct.

The court found that the sentencing judge had erred in not considering the previous unserved sentence as a relevant factor in the new sentencing process. The court acknowledged the significant gap in time and the appellant's apparent rehabilitation but held that the prior unserved sentence should still be factored into the new sentence. Furthermore, the court held that despite the lengthy gap between the two periods of offending, parole supervision was desirable to ensure continued public protection and to monitor the appellant's compliance with the law. The court re-apportioned the minimum and additional terms of the sentence accordingly.

The final orders of the court were to reduce the sentence for the new offences to reflect the consideration of the unserved term from the 2006 conviction and to impose parole supervision for a period deemed necessary by the court. The court emphasised the importance of both retribution and rehabilitation in its decision.

Orders