R v Appleby [1999] NSWCCA 157

New South Wales Court of Criminal Appeal CITATION : R v Appleby [1999] NSWCCA 157 FILE NUMBER(S) : CCA 60752/98 HEARING DATE(S) : 11 June 1999 JUDGMENT DATE : 11 June 1999

PARTIES : Regina v Malcolm Raymond Appleby JUDGMENT OF : Grove J at 1; Carruthers AJ at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0337 LOWER COURT JUDICIAL OFFICER : Morgan DCJ

COUNSEL : R.A. Hulme (Crown) In person (Applicant) SOLICITORS : C.K. Smith (Crown) CATCHWORDS : Criminal law and procedure - Sentence - Break enter and steal - "Ram raid" - Significant prior record - 2 years penal servitude (one year minimum term) markedly lenient DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60752/98

Grove J Carruthers AJ

11 June 1999

REGINA v MALCOLM APPLEBY

JUDGMENT

1 GROVE J : This is an application for leave to appeal against sentence imposed by Morgan DCJ in the District Court at Parramatta on 9 October 1998. 2 The particular offence was breaking entering and stealing which carries a prescribed maximum penalty of 14 years penal servitude. Her Honour sentenced the applicant to a total term of two years penal servitude which in his favour she divided into minimum and additional terms of 12 months each respectively. 3 The applicant had at the time of sentence been in custody in respect of other matters dating back to mid 1998. The reason for this is that the applicant was certainly not without prior conviction. He had many of these and the schedule attached to particulars at trial shows no less than 25 entries, many of which are for multiple offences. Nevertheless the applicant pleaded guilty to this offence and he deserves some credit for that but it cannot be a matter of great weight given the circumstances of his being captured virtually red handed. This will emerge from the brief sketch of the facts which I will mention now. 4 The applicant was one of a group of four offenders who drove a vehicle through the front doors of a business at Chatswood. What was conducted is what is sometimes referred to as a ram raid. The vehicle breached the security of the building and some lap top computers were stolen. However a patrolling security guard informed police and radio messages were broadcast as a result of which the offenders were stopped by police and eventually detained and arrested. 5 It might be noted in passing that the applicant gave a false name and address to police upon his arrest but his true identity was discovered as a result of a fingerprint check. 6 One matter to which the applicant has adverted is the fashion in which a co-offender was dealt with. That co-offender in particular was David Zdravokovic who appeared at the Hornsby Local Court where he received a total sentence of 18 months penal servitude divided into 14 months minimum term and four months additional term. It might be observed that that sentence is less in total than that received by the applicant but the minimum term element of it is longer. 7 With the assistance of the Crown Prosecutor, some summary can be given of the submissions advanced by the applicant in his written response to the Registrar's direction. I have noted that the applicant appears for himself in this application. 8 He proposes the following matters: First, that his offence could have been dealt with earlier and as he was in custody for other matters, he feels that he may have discharged some of his obligation to serve sentence concurrently. Alternatively, he has submitted today that even if the sentence were accumulated, he feels that he would be presently at liberty. Next he contended that he was taken to court without notice and the judge would not grant him an adjournment, thus he had no time to arrange a parole report, a psychological report or a solicitor. 9 It is difficult to fully comprehend what is behind this submission. The record shows that the applicant was represent by a solicitor. A parole report as such was not tendered to her Honour but a parole officer gave oral evidence. There is a view that the oral evidence may have been more beneficial to the applicant, or indeed any offender, rather than the bare written report which frequently has to be the resource from which a sentencing judge must reach conclusions. 10 The reference to a psychological report gains some significance in the circumstance that we have provisionally received a report from Mr W John Taylor dated 27 April 1998 concerning the applicant. That report was apparently prepared in anticipation of other matters for which the applicant was at the time standing for sentence. By reason of its date, it is apparent that the report ought to have been available, if the applicant wished, before the sentencing judge. 11 In any event, there was reference made in the evidence of the probation officer to the existence of a psychological report. One of the significant matters upon which the applicant wishes to rely is that he was suffering from grief arising out of the felonious death of one of his brothers, that death apparently being caused by yet another brother. There is nothing in this material which in my view would give rise to intervention by this Court. 12 The applicant said in his written submissions that he wished to be reunited with his family and he has reiterated his wish for that today and, in effect, his undertaking to stay out of trouble if given a chance. 13 Dealing with these matters beyond the comments that I have already made, it is apparent that there can be no justifiable sense of grievance arising out of the different ways in which the applicant and his co-offender Zdravokovic was treated. The circumstances were different and her Honour was alert to what had happened at Hornsby Local Court and she made express reference to it in her remarks on sentence. Her remarks disclose no error of approach or assessment. 14 The reference to application for an adjournment is obscure in the context that it appears only in the applicant's present submissions. The record of proceedings show that no such application was made on the occasion that the applicant appeared in the District Court at Parramatta. 15 The final matter to which I should make reference is the assertion by the applicant that he would be out of custody by now if he had served some of the sentence concurrently with others, or even if the sentence had been cumulated. It is impossible to perceive any validity in those contentions in the sense that what her Honour might have done is a matter of entire speculation. There is no entitlement of any prisoner, including the applicant, to serve any particular sentences concurrently. On each occasion a sentencing judge has to exercise discretion in accordance with the merits of the case, the guidelines of appellate courts and the requisite strictures of statutes regarding multiple and cumulative sentences. There is apparently no error made by her Honour in respect of the present matter. 16 As was pointed out to the applicant, this is a court of error, that is to say its jurisdiction is not invoked unless it can be shown that there was some mistake made in the court below. In my view the sentence reached by her Honour manifests no error of approach or assessment. The imposition is well within the range of the sound exercise of judicial discretion. Indeed, it could be said, as the Crown Prosecutor commented in his written submissions, that if anything it falls within the lenient sector of any range. 17 I would grant leave to appeal but the appeal should be dismissed. 18 CARRUTHERS AJ: I agree. 19 GROVE J: The order of the Court therefore is the application for leave to appeal is granted but the appeal is dismissed. I will return that copy of the psychological report to the applicant to keep with his papers. **********