R v MAHER [2000] NSWCCA 147

New South Wales Court of Criminal Appeal

CITATION : R v MAHER [2000] NSWCCA 147 FILE NUMBER(S) : CCA 60138 of 1999 HEARING DATE(S) : 12 April 2000 JUDGMENT DATE : 12 April 2000

PARTIES : Regina Craig Maher JUDGMENT OF : Hulme J at 1; Dowd J at 23

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0337; 98/21/0127 LOWER COURT JUDICIAL Karpin DCJ OFFICER :

COUNSEL : Crown: PG Berman Appellant: TJ Golding SOLICITORS : Crown: SE O'Connor Appellant: TA Murphy

DECISION : Leave to appeal granted; Appeal dismissed

- 8 - IN THE COURT OF CRIMINAL APPEAL No: 60138/99

HULME J DOWD J

Wednesday, 12 April 2000 REGINA -v-Craig MAHER JUDGMENT 1 HULME J: On 26 March 1999 Craig Jonathan Maher was sentenced to a fixed term of three years penal servitude commencing on 12 January 1998 in respect of an offence under section 61I of the Crimes Act committed on 22 October 1995 and a cumulative sentence consisting of a minimum term of five years penal servitude commencing on 11 January 2001 and an additional term of three years in respect of an offence against 61J of the Crimes Act committed on 1 January 1998. 2 An offence under section 61I renders the offender liable to a maximum penalty of fourteen years penal servitude. An offence under section 61J renders an offender liable to a maximum term of penal servitude - I use the expression, current at the time of this offence - of twenty years. 3 The circumstances of the first offence were as follows. The applicant lived in a caravan park. The complainant also lived there. On the evening of 21 October a window immediately adjacent to the entrance door of the complainant's caravan was smashed. In the early hours of the next morning the applicant unlocked the door and entered the caravan. The complainant who was lying on her side in bed said, can you leave, I don't want you here. The applicant forced her onto her back removed her track suit pants and underpants, and after something of a struggle forced his penis into her vagina and continued intercourse until he ejaculated. Shortly afterwards he got off and left the caravan. When interviewed by the police on 14 October 1995, he denied all knowledge of the offence and maintained he was not in the vicinity at the time. 4 The second offence occurred on the evening of 11 January 1998. The victim of this offence also at that time was living in a caravan in the caravan park. Her de facto husband was away. The applicant knocked on the victim's door. She opened the door to enquire what was wanted, the applicant pushed her backwards so that she fell striking her head on a refrigerator. The applicant entered the van and by pulling her legs out forced her to lie flat on the floor. She tried to stand up. The applicant punched her in the left eye causing her to fall again, striking her head on the refrigerator. The applicant pulled his own shorts down and lay on top of the victim pushing her nightdress up and again after some struggle, the applicant forced his penis into her vagina. He then continued to have intercourse until he ejaculated. At the end of the exercise the applicant stood up and asked the victim, "how was that"? He was arrested on 12 January and has been in custody since. 5 An unusual feature of both offences was that the applicant was known, and must have been aware he was known, to both of the women involved. 6 At the time of the second offence, he was on bail in respect of the first. 7 He pleaded guilty to the first offence on 1 June 1998, the date fixed as the commencing date for a trial in respect of that offence. On 14 December 1998 the applicant stood trial for the second offence. After the complainant, two police officers, and a medical practitioner who had examined the victim within a few hours of the offence, and who gave evidence of observing injuries consistent with a history of sexual assault, the applicant's counsel indicated that the applicant wished to change his plea and shortly thereafter a plea of guilty was entered. 8 A number of matters were advanced in support of the argument made on behalf of the applicant that the sentences imposed were excessive. One was that her Honour had not given the applicant adequate recognition for his plea of guilty to the first offence. Her Honour was of course required by section 439 of the Crimes Act to take into account in respect of both offences that the applicant had pleaded guilty and then to consider whether the sentence she would otherwise have imposed should have been reduced. She was not obliged as a matter of law, to deal with this matter expressly in her reasons. 9 When dealing with the first offence her Honour said:- "The prisoner has now pleaded guilty".