Regina v Maher [2002] NSWCCA 100

New South Wales Court of Criminal Appeal

CITATION : Regina v Maher [2002] NSWCCA 100 FILE NUMBER(S) : CCA 60353/01 HEARING DATE(S) : 11/02/02 JUDGMENT DATE : 11 February 2002

PARTIES : Regina Robert Lee Maher JUDGMENT OF : Hidden J at 1; Kirby J at 13

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0001 LOWER COURT JUDICIAL Christie DCJ OFFICER :

COUNSEL : PG Ingram - Crown AC Haesler - Applicant SOLICITORS : S E O'Connor - Crown DJ Humphreys - Applicant

DECISION : See paragraph 12

IN THE COURT OF CRIMINAL APPEAL 60353/01

HIDDEN J KIRBY J

Monday, 11 February, 2002 REGINA v Robert Lee MAHER Judgment 1 HIDDEN J: The Applicant, Robert Lee Maher, was found guilty after a trial in the District Court of a charge of break, enter and steal. The learned trial Judge, Christie DCJ, sentenced him to imprisonment for four years with a non parole period of three years but he directed that to be served at the expiration of the non parole period attached to a sentence which the applicant was then serving. That was a sentence of two and a half years with a non parole period of one year to date from 25 April 2000, a sentence imposed by Williams DCJ in respect of a charge of receiving. 2 The break, enter and steal offence was committed on 23 March 2000 at a Woolworths store at Crows Nest. The applicant and a number of other men broke into the store through the front door. They were disguised by balaclavas or similar items. An alarm was set off and police attended the scene, whereupon the applicant and his companions fled. They had removed a very large quantity of cigarettes. Some of those were abandoned when the police arrived but they made off with a quantity worth some thousands of dollars. 3 The offence with which Williams DCJ was dealing also related to a large quantity of cigarettes. On 25 April 2000 the applicant was arrested, having offered to sell some thirty boxes of cigarettes, again worth a great deal of money. There had been a theft of cigarettes from a duty free store that day and Williams DCJ sentenced the applicant upon the basis that those cigarettes were the product of that theft. 4 The applicant was twenty one years old at the time of both offences and is now twenty two. He has a criminal record, including a number of matters of dishonesty, most of it being entries in children's courts. There are, however, some entries in adult courts, although the sentence imposed in respect of receiving was the first time he had been sentenced to an adult prison. At the time of both the break, enter and steal and the receiving offences he was subject to recognisances which had been granted to him in respect of unrelated matters in September 1999. That was a matter to which Christie DCJ had regard, as had Williams DCJ when dealing with the applicant previously. 5 The applicant appears to have suffered a somewhat disrupted childhood. He left school whilst in year 7. In November 1998 he suffered significant injuries in a car accident. He had some casual employment but has largely been unemployed and in receipt of Social Security benefits. He has a four year old daughter who for some time has been in the care of his partner, her mother. 6 When Williams DCJ came to deal with the applicant he found special circumstances in light of his background, his age and the fact this was to be his first custodial sentence. The effect of Williams DCJ's sentence was that the applicant would have been eligible for release after serving twelve months and then would have been subject to a parole period of eighteen months. 7 The primary complaint of Mr Haesler, who appears for the applicant today, is that Christie DCJ failed adequately to recognise the effect of the accumulation of the sentence when it was imposed by Williams DCJ. Mr Haesler submitted that the four year sentence for the break, enter and steal offence standing alone was manifestly excessive, particularly in light of the applicant's age and background, but he submitted that in any event that sentence failed to give effect to the principle of totality whereby one sentencing Judge exercises a measure of restraint in passing a sentence which is to be accumulated upon an existing sentence. 8 For my part I can see the force of that submission but I am not persuaded in all of the circumstances that the four year sentence for the break, enter and steal offence is manifestly excessive, even accumulated as it is. 9 Notwithstanding the applicant's youth this break, enter and steal had a measure of professionalism about it. It was clearly an offence committed for significant commercial gain. The same must be said, of course, for the offence of receiving for which he was dealt with by Williams DCJ. While that four year sentence is quite severe, I am not persuaded that it was beyond the range of Christie DCJ's sentencing discretion. What troubles me, however, is the effect of the non parole period which the applicant presently faces. Christie DCJ did not find special circumstances, even arising from the accumulation, and the effect of the sentence passed by him was to reduce what would have been a non parole period of eighteen months to one of twelve months after a custodial period of four years. 10 With respect, I entirely agree with Williams DCJ that this is a case of special circumstances, given the applicant's youth and background and, in any event, it appears to me that the process of accumulation of itself called for some departure from the usual proportion between head sentence and non parole period so as to preserve a significant period of time during which the applicant might be eligible for release into the community under supervision and the sanction of parole. 11 In my view, an appropriate total sentence in respect of the two offences would have been in the order of five years with a non parole period of three years and three months. The way it should be achieved, in my view, is to confirm the sentence of four years imposed by Christie DCJ, with a commencement date of that sentence on 24 April 2001, but to quash the non parole period fixed by Christie DCJ and specify a non parole period of two years and three months. 12 Accordingly, the orders I propose are these: