New South Wales Court of Criminal Appeal CITATION : REGINA v MUSSETT [1999] NSWCCA 419 FILE NUMBER(S) : CCA 60445/98 HEARING DATE(S) : 15 September 1999 JUDGMENT DATE : 15 September 1999 PARTIES : REGINA v Michael MUSSETT JUDGMENT OF : Wood CJ at CL at 17; Simpson J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0444 LOWER COURT JUDICIAL OFFICER : Dodd DCJ COUNSEL : R Ellis - Crown SOLICITORS : S E O'Connor - Crown CATCHWORDS : ACTS CITED : Crimes Act 1900 Sentencing Act 1989 DECISION : Leave to appeal granted, appeal allowed; The sentence in relation to the second count be quashed and in lieu thereof be imposed a sentence of penal servitude for four years consisting of a minimum term commencing 23 April 1998 and expiring on 23 October 1999, and an additional term commencing on 24 October 1999 and expiring on 23 April 2002; No interference with the sentence imposed on the first count. IN THE COURT OF CRIMINAL APPEAL 60445/98 WOOD CJ at CL SIMPSON J Wednesday 15 September 1999 REGINA v Michael MUSSETT JUDGMENT WOOD CJ AT CL 1 I will ask Simpson J to give the first judgment. SIMPSON J : 2 On 10 July 1998 the applicant appeared in the District Court to adhere to his plea of guilty to an indictment on two charges. The first charge was that he was carried in a conveyance without consent. The second charge was one of break, enter and steal, a charge brought under s 112 of the Crimes Act that carries a maximum penalty of 20 years penal servitude. 3 On the second count Judge Dodd sentenced the applicant to a total term of penal servitude for four years. Having found special circumstances under s 5(2) of the Sentencing Act 1989, he divided that term equally into minimum and additional terms of two years each. 4 On the first count his Honour sentenced the applicant to a fixed term of penal servitude for 12 months. Each sentence was directed to be served concurrently, commencing on 24 April 1998. 5 On the same day Judge Dodd sentenced a co-offender, Mr Shane Geoffrey Gater. The co-offender stole a motor vehicle on 2 April. The following day the applicant was a passenger in the vehicle being driven by the co-offender. It was pursued by police and eventually stopped and the two were arrested. 6 Earlier that day, using the motor vehicle, the co-offender had broken and entered a residence and stolen property while the applicant remained in the car outside. At the time that the two men were pursued by police and stopped, the co-offender was driving whilst disqualified. He was charged with the same offences as the applicant. However, he asked that a number of matters listed on a Form 1 be taken into account. These included driving in a manner dangerous, an offence that arose out of driving the motor vehicle while the police officers were attempting to apprehend the two men. 7 While a police constable was at the door of the car the co-offender accelerated and turned left and caused the vehicle to knock the police constable to the ground. She suffered some injury, which appears to have been relatively minor but which nevertheless indicated the seriousness of Gater's conduct. This was the second offence on the Form 1. 8 Judge Dodd sentenced the two men to identical terms of imprisonment, notwithstanding an argument that was put to him that there were significant differences between the two, which warranted this applicant being treated more leniently. One of the matters so advanced concerned the offences on the Form 1, which Gater asked to be taken into account. Another concerned his criminal history which included at least one previous offence of break, enter and steal, which the applicant did not have. 9 Another matter which was not mentioned by his Honour, but of which he must have been aware, was that the co-offender was five and a half years older than this applicant. 10 His Honour considered the matters that were put before him but thought that the matters adverse to Gater were balanced by a significant aggravating feature affecting the applicant, which was that he was subject to two different recognisances at the time of his offences. It was for this reason that he regarded his criminality as warranting the same penalty. 11 Having considered all of these matters, even bearing in mind the seriousness of the commission of criminal offences whilst subject not to one but two recognisances, I think that the applicant has made good his argument that there was a relevant disparity giving rise to a justifiable sense of grievance. In my opinion, therefore, it is appropriate for this Court to re-sentence. 12 The applicant has been dependent on drugs in the past and has indeed served terms of imprisonment, but his rehabilitation has not until now been promising. However, he put before this Court some material which is very impressive and suggests commendable application on his part to his rehabilitation. I have read that carefully and I am of the view that his efforts in that regard deserve recognition. Further, he addressed this Court and supported what is contained in that material. 13 As I am of the opinion that the applicant should be re-sentenced, it is appropriate to have regard to the rehabilitation that has been demonstrated. 14 Judge Dodd found that there were special circumstances warranting departure from the statutory division provided by s 5(2) of the Sentencing Act, and I would agree with that assessment. 15 In my opinion the total term of penal servitude should not be disturbed but this Court should interfere to the extent of creating a greater variance between the minimum term and the additional term. 16 I propose the following orders: 1. Leave to appeal be granted. 2. The appeal be allowed. 3. The sentence in relation to the second count be quashed and in lieu there of be imposed a sentence of penal servitude for four years consisting of a minimum term commencing 23 April 1998 and expiring on 23 October 1999, and an additional term commencing on 24 October 1999 and expiring on 23 April 2002. I would not interfere with the sentence imposed on the first count. 17 WOOD CJ AT CL: I agree. The orders of the Court will be as proposed by Simpson J. ********** 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.