R v MAHE [2000] NSWCCA 425

New South Wales Court of Criminal Appeal

CITATION : R v MAHE [2000] NSWCCA 425 FILE NUMBER(S) : CCA 60002/99 HEARING DATE(S) : 13 October 2000 JUDGMENT DATE : 13 October 2000

PARTIES : Regina Kevin Andrew Mahe JUDGMENT OF : Hulme J at 1; Barr J at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3164 97/21/3193 LOWER COURT JUDICIAL Ford DCJ OFFICER :

COUNSEL : Crown: PG Berman Appellant: In person SOLICITORS : Crown: SE O'Connor Appellant: In person

DECISION : Application for leave to appeal granted; Appeal refused

- 5 - IN THE COURT OF CRIMINAL APPEAL No: 60002/99

HULME J BARR J

Friday, 13 October 2000 REGINA v Kevin Andrew MAHE JUDGMENT 1 HULME J: On 11 December 1998 Acting Judge Ford sentenced the applicant in respect of three offences. The offences and the penalties imposed were: 1. That on 21 November 1996 he robbed David Nicolletti of a wallet and quantity of money and at the time of the robbery used corporal violence on and wounded David Nicolletti. Penal servitude for a minimum term of five years and an additional term of two years.

2. On 17 January 1997 he robbed one Paul Beavis of $80 cash. Penal servitude for a fixed term of two years.

3. On 17 January 1998 he assaulted and beat or otherwise ill-treated Carly Sulner. Imprisonment for a fixed term of one year. 2 The first offence arose under section 96 of the Crimes Act which provided for a maximum penalty of penal servitude for 25 years. The second arose under section 94 and carried a maximum penalty of penal servitude for 14 years. The third arose under section 61, which provided for a maximum penalty of two years imprisonment. 3 The applicant pleaded guilty to the second and third offences, a jury convicted him on the first. All sentences were directed to commence on 24 March 1999, this apparently being the date on which a prior sentence of 12 months to which the applicant was already subject concluded. Section 9 of the Sentencing Act so required. 4 The applicant has appeared for himself in this appeal and has addressed the court. In addition, he provided to the court an advice on merit from Mr Peter Hamill of counsel. That advice canvasses a number of issues which could possibly be used in appeal, concluding that a number had absolutely no prospect of success but that a few were arguable. The applicant seeks to rely on those. It is not I think necessary that I canvass those which counsel thought were unarguable beyond saying that so do I. 5 In oral submissions, the applicant indicated that he had no complaint as to the length of the period of the sentence imposed by Acting Judge Ford, which in effect was, as I have indicated, a five year minimum term and a two year additional term. His complaint was that those periods had been aggregated to the 12 month sentence he was then serving, and he submitted that they should have been backdated. 6 A prior decision of this court R v Henry indicates as a guideline that a sentence for armed robbery, having certain characteristics, should normally fall within the range of four to five years. The applicant's most serious offence was, by comparison with the type of armed robbery envisaged in Henry, of a significantly more serious nature and the applicant's own circumstances were worse than those of the offender's contemplated by the guidelines. 7 The applicant is appreciably older, having been born in October 1973. He did not plead guilty. His offence involved wounding and was laid under section 96 of the Crimes Act. The applicant also has a substantial record for criminality dating back to 1989 and containing a substantial number of offences of dishonesty. Thus, it is easy to see when his circumstances and his offences are compared with that in R v Henry why his Honour thought that an appropriate punishment was of the order of seven years. 8 It must be recognised also that his Honour made the sentences he imposed on the other two offences concurrent with that which he imposed in respect of the offence of robbing David Nicolletti. There was certainly no obligation on his Honour to do so. Having regard to the fact that the first offence on the one hand and the second and third on the other hand occurred over twelve months apart, they could not be regarded as but instances in the one course of criminality. 9 In circumstances where there was no reason to think that the penalty of 12 months previously imposed at Ryde court on the applicant for offences of maliciously destroy property and entering a land or building with intent to commit a felony were not proper sentences for those offences, there is no error demonstrated in his Honour's decision to make the sentences he imposed cumulative on the earlier ones. 10 Although Acting Judge Ford did not expressly mention the principle of totality, it was clear he was aware of the earlier sentence to which the applicant was subject. Acting Judge Ford is a very experienced judge in the criminal work of the court, and I would not readily infer that the principle could have been overlooked by his Honour. Particularly in this case where the several sentences were only of one and seven years and in the later case five years minimum term, I would certainly not draw that inference. Having regard that the previous sentence was only one year, the impact of the totality principle could at most have been very small. 11 A second point raised by the applicant was that his Honour should have taken into account a period when the applicant was bail refused in respect of these charges. It appears, however, when one examines the relevant documents, that that period when the applicant was bail refused was taken into account in the backdating of the commencement date of the sentence for which the applicant was dealt with at Ryde court in November 1998. It would accordingly have been inappropriate for Acting Judge Ford to take that into account again on sentencing the applicant. 12 A ground raised in the advice concerned the issue of special circumstances and additional term. His Honour said that because of the applicant's previous dependence on alcohol and drugs there were special circumstances. It is contended that given the applicant's prior sentence of one year, in fact his Honour did not increase the additional term at the expense of the minimum term the applicant had to serve to reflect this finding. It is clear that within the sentences he himself imposed, Acting Judge Ford did increase the additional term at the expense of the minimum term and there was no obligation on him merely because the applicant was already serving a one year minimum term to further increase the additional term at the expense of the minimum term. It may be appropriate to note that in effect the additional term to which the applicant was subject under his previous sentence was superseded by the sentence Acting Judge Ford imposed. 13 I see no error in the sentences which were imposed on the applicant and which are under challenge in this application. I would allow the application for leave to appeal but refuse the appeal. 14 BARR J: I agree with the orders proposed for the reasons given by the presiding judge.