Regina v McDermott @ Maxwell [1999] NSWCCA 379

New South Wales Court of Criminal Appeal CITATION : Regina v McDermott @ Maxwell [1999] NSWCCA 379 FILE NUMBER(S) : CCA 60431/99 HEARING DATE(S) : 24 November 1999 JUDGMENT DATE : 24 November 1999

PARTIES : Regina v Lance McDermott @ Lance Maxwell JUDGMENT OF : Sperling J at 1; Dunford J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/3052; 99/21/3098 LOWER COURT JUDICIAL OFFICER : Ford DCJ

COUNSEL : (Applicant): R Burgess (Crown): C K Maxwell QC SOLICITORS : (Applicant): T A Murphy (Crown): S E O'Connor CATCHWORDS : CRIMINAL LAW - no jurisdiction to allow appeal against sentence and re-sentence, where a lesser sentence not warranted, irrespective of whether there is error in the reasons for sentence below. Crimes Act 1900, s 188 ACTS CITED : Sentencing Act 1989, s 5(2) Criminal Appeal Act 1912, s 6 Astill (No 2) (1992) 64 A Crim R 289 Bo Too (NSW CCA, 16 July 1992, unreported) Campbell (NSW CCA, 20 October 1999, unreported) Close (1992) 31 NSWLR 743 CASES CITED: Cocking [1999] NSW CCA 311 Daly (NSW CCA, 14 July 1997, unreported) Holder (1993) 3 NSWLR 245 Leon (NSW CCA, 30 November 1994, unreported) Oastler (NSW CCA, 7 October 1992, unreported) Phillips (NSW CCA, 11 December 1991, unreported) DECISION : Leave to appeal against sentence granted; Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60431/99 DUNFORD J SPERLING J

Wednesday, 24 November 1999 REGINA v Lance McDERMOTT @ Lance MAXWELL JUDGMENT 1 SPERLING J: On 16 November 1994 the applicant was arrested for supplying a prohibited drug (being a $20 bag of cannabis) and was found to be in possession of a further two bags of that drug. A search warrant was executed. The applicant was then found to be in possession of a large quantity of motor vehicle parts which proved to represent approximately three quarters of a disassembled vehicle which had been stolen and which had a value, before being broken up, of $20,000 or thereabouts. The applicant had paid $2,500, or thereabouts, for the parts. He admitted that he knew that they had been stolen. 2 The applicant pleaded guilty to the charge of receiving, for which a maximum penalty of ten years penal servitude is prescribed by s 188 of the Crimes Act 1900. He was committed for sentence to the District Court. However, on 26 May 1995, he failed to appear. A pre-sentence report ordered earlier was never prepared because of his disappearance. A bench warrant was issued. 3 The applicant had in fact gone to the United States. There he was apprehended for trafficking in cocaine and served a sentence in South Carolina between September 1996 and April 1999. There was a relatively small amount of cocaine involved, 12 grams. Following that term of imprisonment, the applicant was held in a detention until he was deported to Australia. While in detention, the applicant notified the Australian Federal Police that he would be returning to Australia, that he wished to clear up outstanding matters, and that he had changed his name by deed poll some ten years earlier. On arrival in Australia, the applicant was apprehended by the Australian Federal Police. 4 On 19 July 1999, the applicant appeared before Ford DCJ for sentence. He asked that the offences of supplying a prohibited drug and being in possession of a prohibited drug (to which I have earlier referred) be taken into account. 5 His Honour imposed a sentence of penal servitude for one year and four months, consisting of a minimum term of twelve months and an additional term of four months. His Honour backdated the sentence to 7 April 1999, which marked the commencement of the applicant's period of detention, pending deportation, following his discharge from prison in the United States. The effect of the sentence was that, on becoming entitled to be released on parole, the applicant would have served some three and a half years continuously in prison and in detention. 6 His Honour noted the applicant's statement that conditions in prison in South Carolina were, in the applicant's terms, pretty tough (a statement which his Honour appears to have accepted). On the evidence, conditions in prison and in detention were harsh. His Honour described the applicant's record as not being a substantial criminal history. I note, however, that, although the applicant had not previously been sentenced to a term of full-time custody, the history included convictions for similar offences. 7 His Honour further noted that, having paid $2,500 for the motor vehicle parts, the applicant no doubt expected to realise a profit when he disposed of them. 8 His Honour further noted that the applicant stated he had had a long time to reflect on his position and had learnt his lesson. 9 The applicant seeks leave to appeal against sentence. The grounds of appeal are: (a) That his Honour failed to consider the principle of totality. (b) That his Honour erred in failing to find special circumstances. (c) That the sentence was manifestly excessive. 10 The offence of receiving stolen goods is a more serious offence than larceny, the maximum sentence for receiving being ten years and for larceny five years. It is the trafficking in stolen goods which makes larceny worthwhile and which thereby contributes substantially to the incidence of larceny. The seriousness of the offence has been recognised by the courts: Phillips (NSW CCA 11 December 1991, unreported); Daly (NSW CCA 14 July 1997, unreported). 11 The principle of totality applies. The principle is not restricted to offences which are part of the same activity: Close (1992) 31 NSWLR 743. The aggregate of the sentences should reflect an appropriate penalty for the criminality involved, having regard to the consideration that the person concerned will be in custody continuously under the two sentences. This may require a sentence to be less than it would have been if considered alone: Holder (1993) 3 NSWLR 245 and Close (above). That is usually so. The principle is, however, more difficult to apply when little is known about the circumstances of the first offence, as in this case. Nonetheless, the principle operates and is a relevant consideration in the present case. 12 Special circumstances within the meaning of s 5 (2) of the Sentencing Act 1989 may exist where a court imposes a cumulative sentence. It may then be appropriate to structure the total sentence by increasing the additional term at the expense of the minimum term in order to provide an appropriate relationship between the total of the minimum term to be served and the effective additional term: Simpson (1992) 61 A Crim R 58 and Close (above). Such an adjustment is, however, not necessarily appropriate: Leon (NSW CCA, 30 November 1994, unreported). 13 It is submitted on behalf of the applicant that, because his Honour did not mention the topics, he should be taken to have overlooked the principle of totality and the need to consider whether there were special circumstances arising from accumulation. A failure to mention such matters may indicate a failure to consider them: Bo Too (NSW CCA, 16 July 1992, unreported); but not necessarily so, Close (above); Astill (No 2) (1992) 64 A Crim R 289; Campbell (NSW CCA, 20 October 1999, unreported). In this case - as will appear - it is unnecessary to resolve that question, although I would doubt that an experienced judge, such as this trial judge, did overlook considerations so obviously relevant. 14 Affidavits by the applicant's solicitor and by the applicant and the documentary material annexed to them show that the applicant has made good progress in rehabilitating himself. Certificates from the prison demonstrate that he has participated enthusiastically in employment and rehabilitation programmes. The prospect of complete rehabilitation is promising in this case. 15 Appeals to this Court against sentence are governed by ss 5 and 6 of the Criminal Appeal Act 1912. Section 5 provides that such an appeal is by leave. Section 6 (3) provides as follows: "6(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 16 It is only if a different sentence is warranted that this Court has jurisdiction to interfere with a sentence. Otherwise, in terms of s 6(3), this Court is bound to dismiss the appeal; see Oastler (NSW CCA, 7 October 1992, unreported); Astill (No 2) (1994) 64 A Crim R 289; Cocking [1999] NSW CCA 311. 17 In the present case, the principle of totality, the cumulative nature of the two sentences and other subjective considerations which I have mentioned are to be put in the balance in favour of leniency. It is necessary, however, that the total sentence and the minimum term should be proportionate to the objective criminality involved. 18 I have considered the objective circumstances of the offences for which the applicant was sentenced by the District Court judge and the objective circumstances of the cocaine trafficking offence (so far as these are known). I have regard to the principle of totality. I would find special circumstances arising from the factor of accumulation which would justify but which do not mandate departure from the statutory relationship between the additional and the minimum terms. I have regard to the subjective considerations I have mentioned relative to the applicant. 19 Far from regarding the present sentence as excessive, I would not impose a lesser sentence on the applicant, either in relation to the total sentence or in relation to the minimum term, if the present sentence were set aside for error. A lesser sentence not being warranted, irrespective of whether there was error in the sentencing judge's reasons for the sentence he imposed, this Court is bound by s 6 of the Criminal Appeal Act 1912 to dismiss the appeal. 20 The orders I accordingly propose are as follows: (1) Grant leave to appeal against sentence. (2) Appeal against sentence dismissed. 21 DUNFORD J: I agree. The orders of the Court will, therefore, be as proposed by Sperling J. **********