R v Shipley [2000] NSWCCA 411

New South Wales Court of Criminal Appeal

CITATION : R v Shipley [2000] NSWCCA 411 FILE NUMBER(S) : CCA 60593/99 HEARING DATE(S) : 6 October 2000 JUDGMENT DATE : 6 October 2000

PARTIES : Crown - Respondent Anthony SHIPLEY - Applicant JUDGMENT OF : Simpson J at 1; Hidden J at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1105 LOWER COURT JUDICIAL Mahony DCJ OFFICER :

COUNSEL : T L Budden - Crown J Manuell - Applicant SOLICITORS : S E O'Connor - Crown D J Humphreys - Applicant

LEGISLATION CITED : Sentencing Act 1989 CASES CITED: R v Cronbie [1999] NSWCCA 297 DECISION : Leave to appeal granted, appeal upheld, sentence of imprisonment for a fixed term of twelve months commencing on 1 October 1999 and expiring on 30 September 2000 substituted.

IN THE COURT OF CRIMINAL APPEAL 60593/99

SIMPSON J HIDDEN J

6 October 2000

REGINA v Anthony SHIPLEY Judgment

SIMPSON J : 1 The applicant seeks leave to appeal against a sentence imposed by Judge Mahoney in the District Court on 1 October 1999, following his plea of guilty to a charge of car stealing. 2 Judge Mahoney sentenced the applicant to a total term of imprisonment for two years, made up of a minimum term of sixteen months and an additional term of eight months. It will be necessary to return to the rather curious circumstances in which this structuring was arrived at. 3 The offence was committed on 5 December 1997. The applicant, with Andrew Frost, used a screwdriver to gain access to a motor vehicle parked in a hotel car park whilst its owner was engaged in driving the hotel's courtesy vehicle. They drove it for a little while, and eventually went to a nearby caravan park. Frost was driving the vehicle and he drove it into the gutter causing some damage to it. They then abandoned the vehicle. It was discovered two days later by police. It had been stripped. 4 The applicant did not give evidence on the sentencing proceedings. Evidence was given on his behalf by Ms Jenny Barclay, with whom he was in a recently formed de facto relationship. There was also a pre-sentence report and an update of that pre-sentence report. From these sources the following subjective material emerges. 5 The applicant was born on 16 December 1956. He was about two weeks short of his forty-first birthday at the time of committing the offence. He had a lengthy criminal history, his first charge being recorded at a Children's Court in 1969 when he was twelve years of age. That was an offence of break, enter and steal. Thereafter he was regularly before the Children's Court, and subsequently the Court of Petty Sessions, as it was then called, for stealing, breaking, entering and stealing, and receiving offences. He was also before the Courts for a number of motor vehicle offences, assault and malicious injury, carnal knowledge, cruelty to an animal and, in 1990, contravention of a domestic violence order. 6 The applicant married in 1996, at the age of forty, but the marriage was very short lived. This was because the applicant has a long term entrenched alcohol abuse problem which he refused fully to acknowledge or address. His education has been extremely limited and he has significant literacy problems. He was assessed as emotionally immature with no insight into his alcohol problem. He also appears to have little if any appreciation of the impact of his criminal behaviour on its victims. 7 There was, however, some hope, in that, in the supplementary report written a few days before sentencing, the Probation and Parole officer expressed the view that the relationship with Ms Barclay had had a stabilising influence on the applicant and he had reduced his alcohol consumption. He had, apparently, resumed contact with a sister, he previously having had no association with members of his family. 8 The applicant was sentenced jointly with the co-offender, Frost, but, having regard to their very different subjective circumstances, the judge released Frost on a recognisance. No ground of the present application challenges the sentence on the ground of disparity. 9 Three grounds are advanced in support of the application. The first concerns the sentencing judge's approach to the maximum sentence against which he imposed the sentence he did. After some discussion in this Court, that submission was withdrawn and it need not here be further mentioned. 10 The next ground of the application concerns the structure of the sentence. His Honour was not asked to make a finding of special circumstances within s 5(2) of the Sentencing Act 1989, such as to justify departure from the conventional proportions provided for in that section. He clearly intended to impose a sentence in which the minimum term conformed with the proportions referred to in that section. Initially the sentence he pronounced was within those terms. 11 By s 5 (now repealed), a sentencing court was required to set a minimum term of imprisonment and an additional term during which an offender may be released on parole. By s 5(2), the additional term was not to exceed one-third of the minimum term, unless the Court decided that there were special circumstances. By s 5(3), where the Court reached that decision, it was required to state the reasons therefor. 12 His Honour said: "No submission was put to me on behalf of Shipley that it is a special circumstances case. I am unaware whether that was by way of oversight but in the light of a decision handed down by the Court of Criminal Appeal I think within the last month or so in the matter of McGuinness, ... Sully J indicated that it would have been appropriate for me to have commented on whether or not I thought special circumstances applied. Accordingly, even though nothing has been put on behalf of Shipley, I make the finding that in this case there is no call for a finding of special circumstances on the facts that have been revealed to me ... ".