New South Wales Court of Appeal CITATION : REGINA v Robert Darren McLEOD [2002] NSWCA 420 FILE NUMBER(S) : CA 41107/02 HEARING DATE(S) : 3 December 2002 JUDGMENT DATE : 3 December 2002 PARTIES : REGINA v Robert Darren McLEOD JUDGMENT OF : Mason P at 1; Meagher JA at 14; Heydon JA at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : COUNSEL : Applicant: M Pickin Crown: T Bailey SOLICITORS : Applicant: Crown: S E O'Connor, Public Prosecutions DECISION : Application refused. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41107/02 MASON P MEAGHER JA HEYDON JA Tuesday 3 December 2002 REGINA v Robert Darren McLEOD JUDGMENT JUDGMENT - On application for bail 1 MASON P: This is an application for bail made pursuant to s 28 of the Bail Act. It was referred to this Court in accordance with the practice stated in The Queen v Masters (1992) 26 NSWLR 450. 2 The applicant is charged with an offence of aggravated robbery that occurred on 30 November 1999. It involved the taking with force of a bottle of bourbon from a liquor store, the force involved the assaulting of the man in charge of the shop. It apparently was only on 4 December 2001, when the applicant was arraigned in the District Court at Nowra, that he proffered a plea of guilty. There will still of course be a utilitarian discount but the prospects of any discount being based upon contrition or the early proffering of a plea seem to be very, very small. 3 The applicant is a man aged twenty four. He has, we are informed, spent his life residing in the Wollongong area. He has family and community ties in that area. He has a lengthy criminal record involving numerous offences involving theft, malicious damage, robbery and other offences involving violence. One of the offences involves a charge of escape. The offence in question to which he has now pleaded guilty occurred when he was on parole. 4 The matter seemed to have proceeded at a very desultory pace in the District Court. It first came before Norrish DCJ for sentencing on 15 February 2002. The sentencing proceedings were then stood over in order that the court could have the benefit of a pre-sentence report from the Probation and Parole Service. There were further adjournments. These were caused by the applicant's failure to cooperate with the Probation and Parole Service. 5 On the last day that the matter came before Norrish DCJ, being 1 November 2002, the applicant did not appear when his name was called. A bench warrant issued for his arrest. Eventually he appeared at court. The earlier order for bench warrant was revoked. His Honour received a report from the Probation and Parole officer dated 30 October 2002. The officer spoke about her inability to obtain the applicant's cooperation or attendance. There had been more than one occasion when this did not occur. The report concluded: Consequently, the Service has again been unable to complete the requested pre-sentence report. Mr McLeod's non-attendance at all arranged appointments with this Service and his ongoing daily alcohol use and abuse is likely to render him unsuitable for all community based sentencing options. 6 Norrish DCJ stood the sentencing proceedings over till late March of next year and revoked bail. We do not have any statement of his Honour's reasons but it is common ground that one should infer that his Honour had reached the end of his tether of tolerance and that it is his intent, in view of all of the circumstances, that the applicant remain in custody until the date in March when the conviction will be formally recorded and the judge will proceed to sentence with what information he then has. Presumably it will then include some Probation and Parole report. 7 This Court's jurisdiction is not appellate, it is original. On the other hand, I think it is appropriate that we observe that not only do we not have the day to day experience in these matters, but that we have not had the ongoing involvement with this particular matter that Norrish DCJ had. 8 His Honour cannot to be taken to have formed any concluded view as to what sentence is likely. There is of course the guideline judgment in Henry in this matter. Counsel today for the applicant accepted the probability that some sort of custodial sentence is likely and I take him to have done that on the assumption that there would be no custody in the meantime. The fact that there is custody in the meantime means obviously that the applicant would be given credit for that. 9 It still seems to me to be likely, and I put it no higher than that, simply so as to leave the sentencing judge free to determine the matter as he thinks best, but likely that a further custodial sentence would be imposed, even if the applicant remained in custody. His Honour of course will have to determine the matter on all of the material before him. 10 Submissions of counsel today suggested that there were signs of some change of lifestyle and intent on the applicant's part. We were given some certificates relating to courses that he had attended during an earlier period of custody on unrelated matters. 11 We have to consider the factors referred to in s 32. 12 Whether or not a sentence of imprisonment is inevitable, it is my view that a case for the grant of bail has not been established. I would have regard to the probability of such a sentence being imposed and the importance of the protection of the community from what I would regard unfortunately as a significant risk of continuing offences affecting the public welfare, having regard to the applicant's terrible record. I would also have regard to the interests of the applicant himself, in that the course that his Honour has taken will achieve what all previous persuasion had failed to achieve, namely arm the court with a proper Probation and Parole report so that the sentencing exercise will be able to take place on full information at the end of March. 13 For those reasons I refuse the application. 14 MEAGHER JA: I agree. In addition to what the learned President has said, I think the probability of Mr McLeod turning up for sentencing on 31 March must be almost nil. Despite his plea of guilty, I think there is no question of contrition involved. I think the chances of a custodial sentence being imposed are very high. 15 Insofar as it was alleged to us that he has committed no crime since the robbery in question, I think that fact, if it be a fact, may be attributed to a lack of opportunity. 16 I would refuse the application. 17 HEYDON JA: I agree with the President. 18 MASON P: The application is refused. ********** 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.