New South Wales Court of Criminal Appeal CITATION : Regina v McGarrity [1999] NSWCCA 73 revised - 23/04/99 FILE NUMBER(S) : CCA 60433/98 HEARING DATE(S) : 14 April 1999 JUDGMENT DATE : 14 April 1999 PARTIES : Regina v Kevin Robert Douglas McGarrity JUDGMENT OF : Grove J at 1; Kirby J at 15 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0374 LOWER COURT JUDICIAL OFFICER : Gibson DCJ COUNSEL : L.M.B. Lamprati (Crown) J.S. Andrews (Applicant) SOLICITORS : R. Gray (Crown) T.A. Murphy (Applicant) CATCHWORDS : Criminal Law and Procedure - Sentence - Lapse After 13 Year Gap in Offending - Desirability of Parole Supervision - Reapportionment of Minimum and Additional Terms. DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60433/98 GROVE J KIRBY J Wednesday 14 April 1999 REGINA v KEVIN ROBERT DOUGLAS McGARRITY JUDGMENT 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed upon the applicant by Gibson DCJ where the applicant appeared upon two charges of larceny as a servant. He pleaded guilty to both counts. The circumstances out of which the offences arose were that the applicant was in a relationship with a young woman, apparently not more than half his age, who had steady employment with the well-known tobacco manufacturers and distributors, Rothmans of Pall Mall. On her recommendation the applicant was contracted as a salesman to that company. I observe that the applicant was given that contractual employment although it is known to the Court that between 1962 when he was a juvenile and 1985 he had been convicted of many offences including multiple offences of significant dishonesty. Be that as it may, the applicant was in possession of a truck which was loaded with the product of the Corporation. As I understand it, he proceeded upon a round of sales and delivered to retailers the contents of the truck, as required. The arrangement was that upon delivery of the tobacco products the retailer would pay the applicant in cash or immediately available currency of similar type. On 17 March 1998 the applicant was on his rounds and on completion he was in possession of $4773.49, which it was his duty to account for to the company. 2 At some earlier point he had been approached by a man who said that he would be interested in purchasing the content of his truck. This approach was clearly not a commercial approach in the interests of the tobacco company. On 18 March the applicant by arrangement took the truck to a location apparently near Picnic Point where the content was unloaded and given to the man who had approached him. The value of the content was a little over $144,000. For passing the content to the purchaser, and I use the term loosely, the applicant received $30,000. He apparently returned to the premises that he was sharing with the young lady whom I have earlier mentioned and left a thousand dollars with some petfood. He left a note on the refrigerator indicating that she should not forget to feed the cat. He then left the State. He went to Tasmania. He spent money on accommodation and the purchase of some transport. He claims that some fifteen thousand dollars was stolen from him. In April his funds had substantially been expended and he returned to New South Wales. He surrendered himself to police. It was inevitable that his crime and his commission of it would be discovered. He had abandoned his empty truck near a shopping centre, and as I have already said, he left the State without any explanation. 3 He pleaded guilty at the earliest opportunity of the two charges related to the value of the content of the truck and the amount of cash collected on the day previous to that upon which he had passed the content to the purchaser. Clearly the two offences were connected. His Honour sentenced the applicant to a total term of five years penal servitude for the offence on 18 March and a concurrent fixed term of eighteen months penal servitude for failing to account for the money on 17 March. 4 The argument in support of the appeal was centred upon an ultimate proposition that the enveloping sentence was manifestly excessive. It was said to be so because the sentencing judge had failed to give sufficient weight to three matters in particular. The first was the surrender of the applicant. It was said that in the absence of the applicant it could not be said that there was a strong Crown case. That submission confuses two separate matters. The Crown case was at all times strong. What was necessary was the presence of the applicant in order for that case to proceed. His Honour was well aware that the applicant had voluntarily presented himself to police. It was one of the first things he mentioned in his remarks on sentence. 5 The second matter was the gap of thirteen years which had elapsed since the applicant had committed any offence. It was correctly acknowledged by the learned Crown Prosecutor that that gap represented something which was unusually encountered in circumstances such as these. The applicant had last been before a Court in 1985 where he had received a sentence of 300 hours community service for being an accessory before the fact to a break, enter and steal. He then was of apparent good behaviour for the next thirteen years. Again this is not a matter which his Honour overlooked. Indeed he expressly said that he would take into consideration that the applicant had been "out of trouble" for some thirteen years. 6 The third matter related to a finding by his Honour concerning the general topic of gambling. The evidence in relation to this was in a sense ephemeral and to a large extent speculative. The applicant claimed at the sentencing hearing that he had what was described as a gambling problem. He gave no explicit evidence of the expenditure of any part of the ill-gotten gains of these crimes upon gambling. There was a statement by the young lady with whom he had a relationship that she had seen him on the previous night, which I take to have been 17 March, gamble at a higher rate than on other occasions. But that is somewhat distant from giving evidence of some compulsive gambling problem. There were other pieces of evidence relating to gambling. The applicant is the father of a small boy from an earlier relationship. The mother of that boy spoke to the lady with whom he was in the relationship at the time of these offences and mentioned that he had been a problem gambler of some sort. Surprisingly, therefore, the applicant when interviewed by psychologist for the purpose of his sentencing proceedings and indeed, when interviewed by police after surrender, made no mention of a compulsion to gambling being the inspiration for his offence. 7 There is one other aspect of the evidence concerning gambling to which reference should be made. On 23 April when the applicant surrendered to police, he had previously gone to see an officer of the Salvation Army a bout what he called "a gambling addiction". The only information before the sentencing Court was this assertion by the applicant relayed by Major Rose. His Honour thought it was not without significance that the approach to the Salvation Army was made whilst the applicant was in custody. That observation by his Honour was patently wrong. The applicant must have seen Major Rose before he was taken into custody although the visit was on the same day as he surrendered. 8 Recognising that error, however, his Honour in his remarks on sentence recorded that the applicant had, in effect, advanced as a reason for his crimes that he was a compulsive gambler. His Honour's finding was expressed in these terms after referring to some of the matters that I have adumbrated: "If he had a gambling problem I am not satisfied that it had anything to do with the offences that he was involved in on these occasions." 9 Given the absence of complaint to the police or to the psychologist, and given the ephemeral nature of the other material I am unpersuaded that that finding by his Honour is demonstrated to be wrong. In any event, even taking into account the matters of surrender, the thirteen-year gap since offending and the asserted gambling problem cumulatively, I am of the opinion that the material still falls still short of demonstrating that there was error in his Honour's assessment of five years as an appropriate overall sentence for the two offences committed by the applicant. The assessment was, in my view, well within the appropriate range of the sound exercise of discretion. 10 I turn, however, to a second matter advanced on behalf of the applicant and it relates to the division of the major (enveloping) term into minimum and additional components. His Honour observed that it had been suggested that because of the applicant's background and the fact, which I note was no more than really an assertion, that he was a compulsive gambler, that there was a case made out for special circumstances, that is to say an extension of the additional term component of the sentence during which the applicant might be on parole. His Honour finally said: "In my view there has not been evidence put before me sufficient to require me to make a finding of special circumstances and I decline to do so." 11 It is apparent from the observations that I have made that the submission made to his Honour, seeking a finding of special circumstances in the sense that I have mentioned, was based upon reference to the so-called gambling problem. It appears to have been overlooked in this context that the thirteen-year gap in offending was a matter of considerable significance. The significance of it is that it is evident that given the appropriate circumstances the applicant appears capable of maintaining himself in a situation of good behaviour for an extended period of time. It follows that there is a real benefit to be perceived in the supervision of the applicant in an attempt to return him into a law-abiding situation. 12 The statutory division of term which his Honour necessarily applied when he declined to find special circumstances, left a period of only one year and three months during which the applicant might be supervised whilst on parole. That period would seem on an overall view to be too short to be of as much assistance as would be appropriate to this case. It seems to me that an additional six months would bring the sentence and the additional term component thereof into a span when it might usefully return the applicant to the path of rehabilitation which he seems to have achieved after 1985 until these offences were committed. 13 I would therefore propose the following orders. That the application for leave to appeal be granted. That the appeal be allowed. That the total terms imposed on the first and second counts be reimposed. That is to say on the first count the applicant be sentenced to a total term of five years penal servitude but in lieu of the orders below, it be ordered that that term consist of a minimum term of three years and three months to commence on 23 April 1998 and to expire on 22 July 2001, together with an additional term of one year and nine months commencing on 23 July 2001. On the second count the applicant have the sentence confirmed of eighteen months penal servitude to commence on 23 April 1998 and expire on 22 October 1999. That it be specified that the applicant be eligible for parole from 22 July 2001 and that whilst on parole he be subject to the supervision of the Probation and Parole Service. 14 KIRBY J: I agree with the orders proposed and the reasons given for those orders. 15 GROVE J: The orders of the Court, therefore, will be as I have proposed. ********** 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.