New South Wales Court of Criminal Appeal CITATION : Regina v Muir [1999] NSWCCA 71 FILE NUMBER(S) : CCA 60489/98 HEARING DATE(S) : 12 April 1999 JUDGMENT DATE : 12 April 1999 PARTIES : Regina v Jonathan Paul Muir JUDGMENT OF : Grove J at 1; Kirby J at 12 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/71/0095 LOWER COURT JUDICIAL OFFICER : Cantrill ADCJ COUNSEL : P. Ingram (Crown) In person (Applicant) SOLICITORS : R. Gray (Crown) CATCHWORDS : Criminal Law and Procedure - Sentence - No Particular Point of Principle DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60489/98 GROVE J KIRBY J Monday 12 April 1999 REGINA v JONATHAN PAUL MUIR JUDGMENT 1 GROVE J: The applicant in these proceedings appeared before Cantrill ADCJ in the Albury District Court on 17 August 1998 where he pleaded guilty to seven counts of breaking entering and stealing and one count of breaking and entering with intent. On that day he was remanded for sentence and released on conditional bail. Later he appeared before a Magistrate where he pleaded guilty to a further offence of breaking entering and stealing committed on 17 August 1998, that is to say on the date of his appearance in the Albury District Court. Ultimately his Honour sentenced the applicant to an effective sentence comprising a minimum term of four years penal servitude with an additional term of sixteen months. In imposing that sentence his Honour also dealt with, pursuant to s 51A of the Justices Act, the offence committed on 17 August 1998. It has to be said that the penalty is, on the face of it, quite severe. The applicant has appeared for himself in these proceedings. 2 He has previously submitted some written submissions in response to the Registrar's direction and has today handed up a further document elaborating upon those matters. 3 He draws attention to the circumstance that at the time of the offences he was, to use his words, "under the influence of heroin and sleeping pills". This was a circumstance that was drawn to the sentencing Judge's attention. Addiction per se is not a mitigating factor for offences such as these. 4 A principal matter which the applicant mentions in his letter and in oral address to the Court is that his girlfriend has had a child and that he realises that he is going to be separated from his son during the early years of life. He indicates that he has become more sensitive to his responsibilities as a result of that circumstance. 5 Regrettably the applicant's history to date has not shown any indications of real appreciation of responsibility. The multiple counts which I mentioned involved offences which were committed on 1 and 2 April 1998 respectively. I mention those dates because on 8 April 1998 the applicant appeared at the Wodonga Magistrate's Court where he was dealt with for offences including burglary, theft, handling stolen goods and attempting to obtain property by deception. On this occasion he was given sentences of eighteen months to be served concurrently and by way of an intensive correction order. This is a sentencing option in the State of Victoria which involves a form of probation. As I have mentioned, two of the offences in the indictment were committed about a week prior to the appearance in the Wodonga Magistrate's Court. The subsequent offences were on the 17th of that month, the 28th of that month and the 4th, 7th and 12th of the succeeding month. So it can be seen that despite the considerable lenience which is apparent in the sentence imposed in the Wodonga Magistrate's Court the applicant's choice to continue committing offences remained unabated. 6 The monetary loss to the various victims in these offences was substantial and submissions from the Crown indicate a total property value of approximately $114,000, most of which has not been recovered. There is also a communication in the Crown's submissions drawing attention to material before the sentencing Judge and the effect upon some victims indeed the requirement that the children of one of them undergo counselling. 7 In the written submissions today the applicant has mentioned the matters to which I have already made reference and concludes by asserting that his sentence was heavier than those who have committed more serious crime. 8 The question of comparison is something that always has to be seen in the context not only of the crimes but of the particular offender. For that reason I have related some of the history of the applicant's pattern of offending. 9 The applicant has a footnote to the written submissions in which he makes reference to the cases of R v. Peres-Vargas and R v. Gudgeon. The issue of parity of sentence between co-offenders is one with which this Court frequently deals. It should be observed, as was noted by the sentencing Judge, that the co-offender of the applicant was a juvenile said by the sentencing Judge to have been aged seventeen years in August 1998 when the applicant appeared for sentence. That discrepancy in age is of significance when one looks at comparative sentences. 10 The final paragraph in the submission makes reference to the circumstances of the applicant's present custody. That is not a matter which is germane to the issue of whether or not there is error in the sentence provoking the exercise of jurisdiction by this Court. 11 As I have said, this sentence itself is, on the face of it, quite severe. The applicant is a comparatively young man; on the other hand he is not juvenile. His record is longer than simply including the matters at Wodonga Magistrate's Court to which I have made more extensive reference. The sentence imposed was within the range of the sound exercise of discretion and no error in approach or principle is manifest in his Honour's remarks. In those circumstances whilst I would grant leave to appeal but I would dismiss the appeal. 12 KIRBY J: I agree. 13 GROVE J: The order of the Court therefore is application for leave to appeal granted but appeal dismissed. ********** 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. 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