R v McLennan [2000] NSWCCA 407

New South Wales Court of Criminal Appeal

CITATION : R v McLennan [2000] NSWCCA 407 FILE NUMBER(S) : CCA 60135/2000 HEARING DATE(S) : 4 October 2000 JUDGMENT DATE : 4 October 2000

PARTIES : Crown/Respondent Linda M McLENNAN/applicant in person JUDGMENT OF : Simpson J at 1; Hidden J at 31

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0331 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : R A Hulme - Crown Applicant in person SOLICITORS : S E O'Connor - Crown

LEGISLATION CITED : Crimes Act 1901 CASES CITED: R v Pearce (1998) 194 CLR 610 R v Ponfield (1999) 48 NSWLR 327 DECISION : Leave to appeal granted - appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60135/00

SIMPSON J HIDDEN J

4 October 2000

REGINA v Linda Michelle McLENNAN Judgment

SIMPSON J

1 The applicant seeks leave to appeal against a sentence imposed upon her in the District Court by Judge Nield on 7 March 2000, following her conviction by a jury on a single charge of break enter and seal. The applicant has abandoned an appeal against conviction. By s 112(1) of the Crimes Act 1901 the applicant became liable to a maximum penalty of imprisonment for fourteen years for the offence. Judge Nield sentenced her to imprisonment for two and a half years, made up of a minimum term of one year and an additional term of eighteen months. He specified that the sentence was to commence on 13 March 2000. This was because the applicant was in custody in relation to certain other offences for which she had been sentenced in the Local Court 2 In fact those Local Court sentences were also before Judge Nield on the same day, as the applicant had appealed against them to the District Court. The applicant had been convicted of sixty-six charges, sixty-five of them offences of dishonesty, being principally offences of obtaining benefits by deception, making or using false instruments, goods in custody and stealing. The magistrate imposed various custodial sentences to be served concurrently, the longest of which imposed in relation to two of the deception counts, was a fixed term of imprisonment for six months. On fifty-eight of the charges he sentenced the applicant to the rising of the court. 3 Judge Nield was critical of the procedure adopted by the magistrate in relation to those charges on which he sentenced the applicant to the rising of the court, but otherwise substantially upheld the sentences imposed. No appeal lies to this court from the decision of Judge Nield in this respect and, other than as explaining the sentencing commencement date, and as appears later in relation to one of the matters advanced by the applicant on appeal, these sentences are of no further materiality. 4 The offence the subject to the present proceedings was committed on 10 March 1998 and it is necessary to take a moment to explain the circumstances in which it was committed. Some time in January 1998 the applicant telephoned an acquaintance, Ms Roberta Gee. She ascertained that Ms Gee intended travelling overseas from the end of January for several weeks. Ms Gee had previously lived at 132B Mowbray Road, Willoughby. She and the applicant had worked together for a time in 1986 and had maintained their contact for some time after their joint employment came to an end. The applicant had visited Ms Gee at Mowbray Road. Subsequently after the two had lost contact, Ms Gee left the apartment but retained the telephone number at her new address. As a result, when the applicant rang Ms Gee in January, she in fact spoke to her at her new address, although the applicant did not realise that. 5 During the time that Ms Gee expected to be away from Sydney, the applicant went to the Mowbray Road flat. She telephoned a locksmith and identified herself as Roberta Gee and told him that her purse had been stolen and it had contained her keys. The locksmith asked a few questions about the interior layout of the flat, designed to confirm that she was the resident of the premises. These she was able to answer because of her previous visits. Having gained access the applicant then stole property belonging to the current occupant, Ms Julie Terry, who was a friend of Ms Gee. The value of the property stolen amounted to more than $21,000. None of it has been recovered. It includes some items of sentimental value. 6 The applicant's trial commenced in Gosford on 23 August 1999. The jury returned a verdict at about 12.15 the following day. Judge Nield continued the applicant's bail over the lunch break, intending to commence the sentencing proceedings at 2pm. During that time the applicant left Gosford on a train. She was not recaptured until 13 January 2000. This accounts for the long delay between conviction and sentence, but is of no other relevance for present purposes, except perhaps as an indication of an absence of contrition. 7 Sentencing proceedings resumed on 15 February 2000. The applicant gave evidence. Inter alia, she said that she accepted the verdict of the jury.