REGINA v MINOGUE [1999] NSWCCA 427

New South Wales Court of Criminal Appeal CITATION : REGINA v MINOGUE [1999] NSWCCA 427 FILE NUMBER(S) : CCA 60529/98 HEARING DATE(S) : 27 October 1999 JUDGMENT DATE : 27 October 1999

PARTIES : REGINA v Rodney Joseph MINOGUE JUDGMENT OF : Simpson J at 1; Smart AJ at 8

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0268 LOWER COURT JUDICIAL OFFICER : Rummery DCJ

COUNSEL : R D Ellis - Crown SOLICITORS : S E O'Connor - Crown CATCHWORDS : ACTS CITED : Crimes Act 1900 Criminal Procedure Act 1986 DECISION : Leave to appeal granted. Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60529/98

SIMPSON J SMART AJ

27 October 1999

REGINA v Rodney Joseph MINOGUE Judgment

SIMPSON J : 1 The applicant seeks leave to appeal sentences imposed upon him by Rummery J in the District Court on 31 August 1998 following the applicant's pleas of guilty to an indictment containing two counts. The first was a charge of break enter and steal brought under s 112(1) of the Crimes Act 1900 which prescribes a maximum penalty for the offence of penal servitude for 14 years. The second was a charge of taking a conveyance without the consent of the owner brought under s 154A of the Crimes Act which prescribes a maximum penalty of penal servitude for five years. In addition the applicant asked his Honour to take into account an offence of possession of a prohibited drug pursuant to the provisions of s 21 of the Criminal Procedure Act 1986. 2 On the first count of break enter and steal and taking into account the Form 1 matter, Rummery J sentenced the applicant to a total term of penal servitude for two years and eight months made up of a minimum term of two years and an additional term of eight months. On the second count he imposed a fixed term of penal servitude for two years. The offence of break enter and steal was committed on 21 January 1998 when the applicant broke the window of a business which apparently sold bicycles. The applicant had loaded one bicycle into a nearby motor vehicle and had another ready to load at the time he was apprehended by police. The two cycles together had a combined value of $16,400. The vehicle into which he was loading the cycles, a Daihatsu hatchback, had been reported stolen nine days earlier. It was his use of this vehicle that constituted the second offence. When searched, the applicant was found to have a quantity of marijuana in his pocket. This constituted the offence of possession of prohibited drug on the Form 1. 3 The applicant was born on 11 November 1965. He was 32 years of age at the time of the offences. He is now 33. He has an extensive criminal history which commenced in 1981 when he was 15 years of age. He continued to have encounters with the law until 1996. His offences include a number of thefts of motor vehicles, break enter and steal and significantly seven charges of armed robbery. For these last offences he was sentenced to two years imprisonment in Melbourne. However as the applicant pointed out in a letter directed to this Court, following his release from that sentence he remained free of custodial sentences until dealt with for the present offence. That does not mean that he remained entirely crime free. In 1993 he was charged with the cultivation of a prohibited plant and in 1994 with driving with the mid range prescribed concentration of alcohol and in 1996 with assault occasioning actual bodily harm. In relation to the first two of these offences he was fined and on the assault charge he was required to perform 250 hours of community service. 4 There was before his Honour a pre sentence report which showed that he had spent significant periods in institutions as a young person. As a result, his formal education was disjointed but nevertheless he presented as articulate and perceptive. He related a drug history commencing from 10 years of age which included periods of addiction to cocaine, amphetamines and alcohol. He described himself as having a compulsive nature. To the officer he acknowledge his need for counselling which he had not previously sought. 5 The applicant appeared unrepresented in this Court. He presented a written argument in which he claimed that his main complaint is that the total sentence imposed and the minimum term are manifestly excessive. He sought to make good this argument by reference to statistics provided by the Judicial Commission. Further, he argued that his Honour did not view the offence in its true light "as the drunken act of stupidness as it was". He acknowledged that a prison sentence was necessary but suggested that a sentence of about 12 months would more accurately reflect the objective and subjective circumstances. He particularly argued that his Honour did not take into account the lengthy period of time that he was able to remain free of criminal offences justifying a custodial penalty and during which time he said he was mostly employed. This last argument can quickly be dealt with. On two occasions during the course of the remarks on sentence the sentencing Judge acknowledged the period during which the applicant had not come under adverse police notice and during which time he was in the main employed and his Honour specifically took into account the period of years when he was not committing offences. Indeed it might be argued that his Honour treated that period rather more favourably than the objectives facts warrant, since as I have said, there were some offences committed although they were not offences which resulted in imprisonment. 6 Referring to the Judicial Commission statistics the applicant argued that only 11 per cent of offenders of the same kind were subjected to a sentence of equivalent or greater length than that imposed on him. I am unable to see that these statistics support the applicant's claim. Those provided by him appear to show that at least 23 per cent of offenders under s 112(1) receive sentences with a minimum term of two years or more. Of hose who have previously committed offences of a similar kind and upon whom custodial sentences are imposed, 40 per cent receive sentences of equivalent or greater length. 7 Comparable statistics provided by the Crown refined to include Form 1 matters show an even higher correlation. However this Court is familiar with the wide variety of matters that might be included on a Form 1. In my view the single count of possession of a prohibited drug taken into account is not one that would result in a major increase in the penalty otherwise appropriate for the count in relation to which the sentence is being imposed. Notwithstanding that, having regard to both sets of statistics it is my opinion that what is demonstrated is that the sentence imposed by Rummery J did come well within the range of sentences properly open to him. No other error has been demonstrated. I would grant leave to appeal but dismiss the appeal. 8 SMART AJ: I agree. SIMPSON J: The orders of the Court will be that leave to appeal is granted but the appeal is dismissed. **********