New South Wales Court of Criminal Appeal CITATION : Regina v DUNSTALL [1999] NSWCCA 271 FILE NUMBER(S) : CCA 60509/98 HEARING DATE(S) : 2 July 1999 JUDGMENT DATE : 2 July 1999 PARTIES : The Crown Glen Roland Dunstall JUDGMENT OF : Newman J at 1; Bell J at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/71/0087 LOWER COURT JUDICIAL OFFICER : Cantrill ADCJ COUNSEL : D N Howard (Crown) P R Zahra (Appl) SOLICITORS : C K Smith (Crown) T A Murphy (Appl) CATCHWORDS : CASES CITED: R v Gallagher, (1991) 23 NSWLR 220 DECISION : Appeal upheld IN THE COURT OF CRIMINAL APPEAL 60509/98 NEWMAN J BELL J FRIDAY, 2 JULY 1999 REGINA v Glen Roland DUNSTALL JUDGMENT 1 NEWMAN J: This is an application for leave to appeal on the sentence imposed from the Albury District Court by his Honour Acting Judge Cantrill on 20 August 1998. 2 Before his Honour the applicant had pleaded guilty to an indictment containing a charge of dispose of stolen property contrary to s 188 of the Crimes Act which carries a maximum penalty of ten years penal servitude. His Honour in relating to that indictment was asked to take into account five matters involving stealing a cheque, presenting a stolen cheque and two matters of dishonestly obtaining money. Not only was his Honour dealing at the same time with an appeal from a magistrate involving a misrepresentation, but also he was dealing with a breach of recognisance imposed by her Honour Judge Karpin in relation to a matter which had come to her by way again of an appeal of a magistrate's sentence. The two other matters involved sentences of three and six months respectively. 3 His Honour sentenced the applicant to a total sentence of four years consisting of a minimum term of three years and an additional term of one year. The matters which have arisen from the appeal from the magistrate and the breach of recognisance before Judge Karpin his Honour dealt with concurrently. 4 The matters on indictment and the matters to be taken into account before his Honour were very serious. The disposing of the stolen property in question involved a number of motor cars. It is not necessary for the purposes of the application for leave to appeal to list them as his Honour quite properly did in his reasons for sentence, but the retail value of the vehicles was in the vicinity of $37,000 to $39,000. The matters to be taken into account were of themselves matters of some seriousness. 5 His Honour also took quite properly into account when dealing with the subjective circumstances, the applicant's criminal record which was one which was of absolutely no assistance to him at all as he had been fortunate in the past one might properly think, in not having been to gaol for a period longer than either three or six months for the various offences which had brought him before the courts. 6 His Honour in imposing the sentence he did followed the proportion between minimum and additional terms stipulated by the Sentencing Act. His Honour did not, in dealing with the applicant, refer to the question of special circumstances which are referred to in s 5(2) of the Sentencing Act. That of itself I may say is not a matter which necessarily leads to error. In fact the sentences imposed by his Honour, other than a matter involving the question of special circumstances, could not in my view, and indeed it was not urged upon us by counsel for the applicant, be considered to be excessive. The sentence of four years for the matters, particularly when his Honour took into account and dealt with on a concurrent basis two other matters, is not a sentence which on the face of it could be thought to be excessive. Again, as I have said, the question of special circumstances would be another question. 7 However there is another matter which has been raised. That is the question of assistance to authorities pursuant to s 442B of the Sentencing Act. The applicant had in fact given assistance to the authorities which had been dealt with by a Detective Stares, and he had in the statement which had been originally tendered before the magistrate and was before her Honour Judge Karpin said of the information the applicant had provided: "The information has proved correct and opened new avenues of enquiry." 8 The matter of goods in custody before the learned magistrate was in fact factually linked to the principal charge in the indictment before his Honour, namely dispose of stolen property. His Honour in dealing with the matter did not specifically refer to this question of assistance. The fact of assistance constituted the principal submission made on behalf of the applicant before this Court. 9 The Crown argued that the matter of assistance in fact had been exhausted so far as the grant of any leniency or discount in relation to sentence of this man is concerned. The Crown submitted it had already been taken into account in considering the matter of goods in custody and that accordingly the benefit of that assistance as far as sentencing of the applicant was concerned, was exhausted. 10 The Crown rightly took us to what had fallen from this Court in R v Gallagher (1991) 23 NSWLR 220 at 231 when Gleeson CJ dealt with the question of the sentences to which a discount pursuant to s 442B of the Crimes Act was concerned. At 231 the Chief Justice said: "It would be quite wrong to suggest that in a case such as the present the sentencing judge has no option but to relate the so-called discount to all the offences with which he is dealing. It is a matter for the exercise of a judicial discretion in the facts and circumstances of each individual case, and there is nothing about the facts and circumstances of the present case making erroneous the approach adopted by the learned sentencing judge." 11 I should observe what the learned Chief Justice was there referring to was the provision of a discount by the judge below in relation to the more serious offences with which the then applicant had been convicted and had not applied a discount to the nine more offences. 12 As I have already indicated the charge of goods in custody and the principal charge with which the applicant stood before his Honour, were factually linked. It seems to me taking the approach adumbrated by Gleeson CJ in Gallagher's case that the court in a proper exercise of discretion should have given a discount in relation to the principal charge to which the applicant had pleaded guilty before Cantrill ADCJ. It is the relationship between the charge of goods in custody before the magistrate and that principal charge which encourages me to make that observation. 13 Accordingly, I am of the view that this is a case where a discount should have been applied. As I have said there can be no suggestion that the total sentence passed, excluding the question of assistance, was anything but appropriate. 14 The other matter which arose is that of special circumstances. The applicant is no boy, he is now thirty. He had a bad criminal record in the past but had been dealt, with some leniency, by the courts. However, the fact is he suffers from, as unfortunately do many who come before the judicial system, a personality disorder. In my view this is a case where having regard to the fact that the applicant was for the first time in his life being sentenced to a substantial term of imprisonment, the question of his personality disorder and his ultimate rehabilitation was one the court should have taken into account. As I am of the view that the court should interfere it is a matter where special circumstances call for the proportion between minimum and additional terms stipulated by the Sentencing Act should be changed. 15 In the upshot having regard to the nature of the assistance, the court should interfere and quash the sentence imposed by Cantrill ADCJ in relation to the head sentence. His Honour as I hope I have indicated did in my view quite properly deal with the two other matters before him exercising the principle of totality, and I would see no reason for this Court to do anything else but the same. 16 In my view the sentence should be quashed and the head sentence of three years be substituted in lieu of the head sentence of four years imposed by his Honour. Having regard to the question of special circumstances, it is my view that the minimum term should be 18 months and the additional term also 18 months. 17 The court should make the following orders: 1. Application for leave to appeal is granted. 2. Appeal upheld. 3. The sentence imposed below is quashed and in lieu thereof I would impose a minimum term of 18 months commencing on 20 August 1998 and expiring on 19 February 2000 and an additional term of 18 months commencing on 20 February 2000 and expiring on 19 August 2001. I would not disturb his Honour's findings in relation to the two other matters dealt with on a concurrent basis. 18 BELL J: I agree 19 NEWMAN J: The orders of the court are as I have proposed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.