Regina v Baglee [1999] NSWCCA 223

New South Wales Court of Criminal Appeal CITATION : Regina v Baglee [1999] NSWCCA 223 FILE NUMBER(S) : CCA 6058/99 HEARING DATE(S) : 4 August 1999 JUDGMENT DATE : 4 August 1999

PARTIES : Regina v Anthony BAGLEE JUDGMENT OF : Levine J; Smart AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0425 98/31/0426 LOWER COURT JUDICIAL OFFICER : Mitchelmore DCJ

COUNSEL : P G Berman for the Crown SOLICITORS : S E O'Connor for the Crown Applicant in person CATCHWORDS : Criminal law; sentence for break enter and steal;; not excessive in circumstances. ACTS CITED : -Nil- CASES CITED: -Nil- DECISION : Leave to appeal granted.; Dates of sentence varied.

IN THE COURT OF CRIMINAL APPEAL 60058/99

LEVINE J SMART AJ

WEDNESDAY 4 AUGUST 1999

REGINA v Anthony BAGLEE

JUDGMENT 1 SMART AJ : Anthony Steven Baglee seeks leave to appeal against the severity of a sentence comprising a minimum term of two years six months and an additional term of eighteen months on a count of break, enter and steal. He was also sentenced at the same time to fixed terms of twelve months on three counts of break, enter and steal and seven counts of receiving. The judge selected the count on which he imposed the greatest sentence because it was a charge of break, enter and steal, and had been committed while the applicant was on bail. 2 There was a reasonable amount of property involved and the applicant was seen at the property and then running through neighbouring yards with a bag belonging to the owners of the property where the offence occurred. There was another man involved, namely the applicant's brother. The applicant, amongst other things, acted as the lookout. 3 The judge also took into account a number of other offences, namely obtain benefit by deception (obtained one hundred and fifty dollars cash after pawning stolen property), furnish false particulars to a pawnbroker, goods in custody (numerous items), three serious driving offences (drive whilst disqualified, drive unregistered vehicle, drive uninsured vehicle), and possess prohibited drug (cannabis) when dealing with one of the receiving counts. 4 They cannot be left out of account when considering the totality of the criminality. The applicant has made it clear that he is only appealing on the charge on which the major sentence was imposed, and he submits that that should be dealt with separately and that the sentences imposed on the other matters were separate. 5 All of the break, enter and steal offences involve breaking into the houses or flat of the occupants while they were out and taking some of their goods. In some instances flyscreens had been removed and windows opened. In one instance the occupant's home was ransacked and clothes from drawers strewn across the floor of the main bedroom. The front door of the flat was kicked in. 6 On 19 July 1998 at Windale, police located a large amount of stolen property in the applicant's vehicle. That property came from homes in the Newcastle area which had been broken into. The receiving counts relate to the property stolen from the various homes. 7 This brief narration of the facts reveals an extended degree of criminality. The appellant in his written submissions and in his oral submissions today confined his appeal to the major sentence imposed. The applicant contended that (a) he was just a lookout; (b) the co-offender, the appellant's brother, only received six months on two counts of break, enter and steal, and that the principles of parity were not applied by the judge; (c) undue weight was attached to his record and (d) the special circumstances which existed were not given enough weight. 8 There is no doubt that the applicant was fully involved in the offence which he committed with his brother. The fact that they were jointly involved does not lessen the applicant's criminality. The applicant's brother was dealt with by a magistrate in respect of two counts of break, enter and steal, albeit that other matters were taken into account. The judge correctly rejected the parity argument for the reasons which he gave. 9 The applicant's record goes back to 1989 and contains some twenty-four entries, some with multiple offences. There was a mixture of driving offences, dishonesty offences and drug offences. He has been in gaol quite frequently. He was born on 15 January 1972. His record disentitled him to leniency. 10 The judge in my opinion did give sufficient weight to the special circumstances and an additional term of eighteen months was appropriate. The judge's reasons and the way in which he dealt with the matter were correct. 11 In addition, the appellant contended that (1) he pleaded guilty at the first opportunity; (2) he has never had alternative non-custodial sentences imposed on him; (3) he has had positive gaol reports regarding education, which must be seen as him trying to rehabilitate himself, and is spending a great deal of time doing drug and alcohol rehabilitation; (4) as an E2 classification prisoner he will be forced to serve the total sentence in maximum security prisons. 12 That classification results from an escape by the applicant. While it is right to consider the conditions under which the applicant will serve his sentence, nevertheless his own conduct has led to that position. The applicant contended further that the sentence as a whole was manifestly excessive. 13 The judge in dealing with the matter was conscious of the principle of totality. The Court cannot ignore the large number of offences and the context in which the applicant was sentenced. The offence on which the major sentence was imposed was objectively serious and carries a substantial maximum penalty. The other offences were also serious. 14 The judge considered all the important matters and the favourable subjective features. The individual sentence complained of was well within the permissible range. Indeed, having regard to the overall criminality, the sentences imposed were lenient. 15 Our attention has been drawn to the applicant not being given sufficient credit for the periods he spent in custody prior to sentence. The applicant was arrested on 19 July 1998 and released on bail on 13 August 1998, being the first day on which he could meet the bail conditions. This amounts to twenty-five days in custody. The applicant was re-arrested on 23 August 1998 and he has been in custody from that date. The position therefore is that the sentences should have been dated from 29 July 1998 to give full effect to the pre-sentence custody. The judge's attention was not directed to the correct dates. 16 Accordingly, while the appeal on the substantive point raised by Mr Baglee fails, it succeeds on the period in custody point. I would propose that leave to appeal be granted and that the appeal be allowed and that in lieu of the dates specified by the judge the sentence of two years and six months minimum term commence as from 29 July 1998 and expires on 28 January 2001. The additional term of eighteen months commences on 29 January 2001 and expires on 28 July 2002. 17 LEVINE J : I agree. The orders will be as proposed by Justice Smart. **************************