Regina v Quinlan [1999] NSWCCA 70

New South Wales Court of Criminal Appeal CITATION : Regina v Quinlan [1999] NSWCCA 70 FILE NUMBER(S) : CCA 60216/98 HEARING DATE(S) : 12 April 1999 JUDGMENT DATE : 12 April 1999

PARTIES : Regina v Ralph Reynold Quinlan JUDGMENT OF : Grove J at 1; Kirby J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0528;97/11/0483;97/11/0049 LOWER COURT JUDICIAL OFFICER : Viney DCJ

COUNSEL : P. Ingram (Crown) J. Nicholson SC with R. Killalea (Applicant) SOLICITORS : R. Gray (Crown) John Bettens & Co (Applicant) CATCHWORDS : Criminal Law and Procedure - Sentence - Crimes Act s 442B - Special Considerations ACTS CITED : Crimes Act 1900 DECISION : Appeal allowed. Appellant resentenced.

IN THE COURT OF CRIMINAL APPEAL

60216/98

GROVE J KIRBY J

Monday 12 April 1999

REGINA v RALPH REYNOLD QUINLAN

JUDGMENT 1 GROVE J: This is an application for leave to appeal against the sentence imposed by Viney DCJ in the Sydney District Court. I propose to give relatively brief reasons for the conclusion that I will express. 2 The applicant appeared and pleaded guilty to two counts of armed robbery and one count of attempted armed robbery. On a schedule, five offences of stealing motor vehicles and one charge of escaping from lawful custody was taken into account. There was also a second indictment which related to three matters of assault which had apparently occurred at a prison farm. 3 The structure of the sentences imposed in the District Court were such that the sentence on the first count of the first indictment enveloped all of the periods imposed in respect of other matters. It is therefore sufficient in my view to focus attention upon that sentence which was a total of fourteen years penal servitude divided into minimum and additional terms of nine years and five years respectively. 4 The applicant is a man of Aboriginal background. He had a not inconsiderable prior record. It is apparent that the offences would carry significant penalty. 5 Mr Nicholson SC for the applicant has acknowledged that in the absence of special features the sentence which I have mentioned must be regarded as within the range of possible imposition. 6 The applicant's case has been based upon four major premises. It is said that insufficient account was taken of the applicant's plea of guilty, of his rehabilitation prospects, his Aboriginality and finally and fourthly the assistance given by the applicant to authorities. 7 It has been acknowledged in the course of oral submissions that the shortly stated reference to the Aboriginality of the applicant was intended to refer to the frequent disadvantages manifest in persons who have had deprived backgrounds. 8 In this case there was considerable evidence tendered to the sentencing Judge relating to this applicant in particular. His Honour referred to much of that material in his remarks on sentence. It is true that he did not indicate that he was giving any particular amount of discount from the sentence in relation to those matters but for my part I do not conclude that he overlooked them. Similarly, I am unpersuaded that his Honour overlooked in any relevant way the weight to be given to the plea of guilty and to the rehabilitation prospects of the applicant. I am, however, of the view that the applicant's case in relation to the discount that should be allowed for assistance to authorities has been made out. 9 The reason that I propose to deal with this matter in relatively short form is the highly sensitive and important material which is contained in a sealed envelope which was sealed pursuant to an order by Viney DCJ that the same was not to be opened other than by direction of a Judge. I am familiar with the content of that envelope. For reasons of security I regard it as contrary to the interests of the applicant and public generally that I make specific reference to the nature and detail of what is contained therein. Nevertheless I should record my conclusion that the material relates to more than one aspect of assistance. The applicant gave evidence before the sentencing Judge that he was prepared to continue to render assistance and nothing was put before this court to suggest that that situation had altered in any way. 10 I have described the material as sensitive. It is also of self evident importance and therefore I conclude that the applicant was entitled to a significant and weighty discount against any sentencing which otherwise ought to have been imposed. 11 In the course of argument it was canvassed with the learned Crown Prosecutor that the ultimate total sentence of fourteen years penal servitude had to represent what I might describe in the vernacular as a "discounted" term, giving rise to the inevitable question of where did the penalty start. It must not be overlooked that his Honour was dealing with totality of criminality and not with a single count. 12 The maximum penalty for a single count of armed robbery was twenty years. It therefore follows that the discount was something less than a third if, and I emphasise if, it was appropriate to start with a hypothesis of the maximum penalty. 13 Serious though the offences were, and I have not taken time to describe them, I would not categorise them as in the worst range nor would I categorise the applicant in all the circumstances as within the range of worst offender. 14 I have come to the conclusion that the total criminality of the applicant, giving him the discount which his assistance and offer of assistance merits, is to substitute a total term of nine years penal servitude for the longest term imposed below. The other terms can therefore stand including the penalty imposed upon the third count of the first indictment within which the matters on the schedule were taken into account. 15 The total period of nine years would represent a discount approaching forty percent of what I think would otherwise have been an appropriate sentence for the totality of criminality here manifest, giving proper weight to the subjective matters pertinent to the applicant. 16 As is self evident from the division of the term imposed in the District Court his Honour found there was special circumstances justifying an extension of the additional term beyond that contemplated by s 5 of the Statute for reasons co ordinate with those found by his Honour. I too would extend the additional term and I would divide the total term of nine years into minimum and additional terms of six and three years. In my view that sentence would not offend against the prescription in s 444B(2) of the Crimes Act which requires that even where discount of this sort with which I am now dealing has been given the sentence itself should not be reduced below what is appropriate in all the circumstances. 17 As I have indicated the enveloping term on the first count represents the effective term to be served by the applicant. Accordingly I propose the following orders: That the application for leave to appeal be granted; that the appeal be allowed; that the sentence imposed upon the first count of the first indictment be quashed and in lieu thereof the applicant be sentenced to a total term of nine years penal servitude consist of a minimum term of six years commencing on 3 September 1996 and expiring on 2 September 2002 together with an additional term of three years commencing upon 3 September 2002. I would specify that the applicant is to be eligible for parole from 3 September 2002. I would confirm the sentence imposed on the second and third counts and the taking into account in relation to the sentence on the third count all the matters contained in the form 1. I would also confirm the sentences imposed in relation to the second indictment. 18 The reasons that I have adumbrated indicate the concern that I have in relation to the sensitive material contained in the envelope and I would direct that that material be resealed and not opened without the authority of a Judge. 19 KIRBY J: I too am familiar with the contents of the envelope. I agree with the reasons that have been given and the orders proposed. 20 GROVE J: The orders of the court will therefore be as I have proposed. **********