R v Achurch [2000] NSWCCA 537

New South Wales Court of Criminal Appeal

CITATION : R v Achurch [2000] NSWCCA 537 revised - 22/03/2001 FILE NUMBER(S) : CCA 60056/00 HEARING DATE(S) : 4 December 2000 JUDGMENT DATE : 18 December 2000

PARTIES : Crown - Respondent Rodney Joseph ACHURCH - Applicant JUDGMENT OF : Simpson J at 1; Howie J at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0530 LOWER COURT JUDICIAL Payne DCJ OFFICER :

COUNSEL : W G Dawe QC - Crown G Nicholson QC SOLICITORS : S E O'Connor - Crown M Rumore - Applicant

LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act 1986 R v Jurisic (1998) 45 NSWLR 209 at 215 Lowe v R (1984) 154 CLR 606 R v Diamond unreported NSWCCA 18 February 1993 CASES CITED: R v Smith (1997) 95 Crim R 373 R v Lambrinos, unreported 17 July 1998 NSWCCA R v Byrne, unreported 5 August 1998 NSWCCA R v Pearce (1998) 194 CLR 610 DECISION : Leave to appeal granted, each appeal granted, each sentence quashed, applicant re-sentenced.

IN THE COURT OF CRIMINAL APPEAL 60056/00

SIMPSON J HOWIE.J

19 December 2000

REGINA v Rodney Joseph ACHURCH Judgment

SIMPSON J : 1 On 28 January 2000 the applicant appeared for sentence before her Honour Judge Payne in the District Court, having pleaded guilty to seven counts brought under s 188 of the Crimes Act 1900. Six counts were of disposing of stolen property and one was of receiving. Each carries the same maximum penalty, imprisonment for ten years. On four counts Judge Payne sentenced the applicant to consecutive fixed terms of imprisonment of, respectively, seven months, seven months, six months and six months, and on three counts to terms of ten months, each with a minimum term of one month and an additional term of nine months. These sentences she ordered to be served concurrently with one another, but cumulatively upon the fourth of the previously imposed consecutive sentences. The effect of the combined sentences is that the applicant will serve a minimum term of twenty-seven months and an additional term of nine months. 2 The applicant seeks leave to appeal against the severity of the sentences. Three principal grounds of appeal were argued on his behalf. The first of these concerns asserted disparity between the sentences imposed upon the applicant and those imposed upon a number of co-offenders. It will be necessary to consider the circumstances of the co-offenders shortly. The second ground concerns the approach taken by Judge Payne to developments in pronouncements by this court as to the effect of a sentence ordered to be served by way of home detention. That matter arose in the context of a parity argument regarding a co-offender. The third complaint is that insufficient credit was given to the applicant in respect of his pleas of guilty.