Regina v Fitzgerald [2002] NSWCCA 99

New South Wales Court of Criminal Appeal

CITATION : Regina v Fitzgerald [2002] NSWCCA 99 FILE NUMBER(S) : CCA 60341/01 HEARING DATE(S) : 11/02/02 JUDGMENT DATE : 11 February 2002

PARTIES : Regina Daniel Jamie Fitzgerald JUDGMENT OF : Hidden J at 1; Kirby J at 11

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/41/0256 LOWER COURT JUDICIAL JB Phelan DCJ OFFICER :

COUNSEL : PG Ingram - Crown Mr McGill - Applicant SOLICITORS : SE O'Connor - Crown DJ Humphreys - Applicant

DECISION : See Paragraph 10

IN THE COURT OF CRIMINAL APPEAL 60341/01

HIDDEN J KIRBY J Monday, 11 February, 2002 REGINA v Daniel Jamie FITZGERALD Judgment 1 HIDDEN J: The Applicant, Daniel Jamie Fitzgerald, pleaded guilty in the Wollongong District Court before J B Phelan DCJ to two charges of breaking, entering and stealing. He asked that two further charges of malicious damage to property be taken into account when sentenced. Taking those additional matters into account, his Honour sentenced the applicant on each count to concurrent terms of three years and four months with a non parole period of two years and six months. 2 It is unnecessary to recite the facts of the offences at any length. Both offences occurred on 21 August 2000 when the applicant with another man, whose identity is unknown, broke into two clubs in the greater Wollongong area, one at Windang and one at Figtree. In the course of the first break, enter and steal a quantity of cash was stolen. In the course of the second a larger quantity of cash, together with other items, was stolen. It appears that cash and property to the value of in excess of $13,000 remained unrecovered. In addition, in the course of each of the break-ins property and equipment at the clubs was damaged. It was this which gave rise to the offences on the form one and that damage amounts to quite a substantial sum, in excess of some $70,000, it would appear. 3 The applicant was twenty six years old at the time of these offences and is now twenty seven. He appears to have a satisfactory family background, his family being supportive of him. He was educated to year ten standard. He worked for a time for a joinery company until he injured his hand in 1996. He has since been unemployed and been in receipt of a disability pension. He has a history of drug abuse, although it is not entirely clear to what extent that problem contributed to the current offences. 4 He has quite a lengthy criminal record, commencing in a children's court in August 1991, for a variety of offences, including offences of dishonesty. That said, however, the current offences appear to be considerably more serious than those contained in his criminal record. 5 He pleaded guilty, albeit late in the piece. His Honour noted that the case against the applicant was strong and considered that a discount of fifteen percent of the sentence otherwise appropriate reflected those pleas of guilty. 6 When this application for leave to appeal was instituted the applicant was unrepresented and he furnished to the Registry a brief outline of argument relying upon a number of matters. Today we have had the benefit of representation by his counsel, Mr McGill, who appeared for him in the District Court. Mr McGill refined the argument to two matters. The first arises from the state of the applicant's health. He is a diabetic and there was before his Honour medical evidence about that condition which disclosed that he needed regular doses of insulin throughout each day. That was a matter to which his Honour expressly referred and to which his Honour clearly gave appropriate weight. Inevitably a condition of that kind causes some disruption to the applicant's prison routine but from the medial material before his Honour that was apparent. 7 When the applicant prepared his own written arguments in support of his application he expressed the fear that his medical condition might frustrate his progress through the prison classification system. However, as to that he may now be reassured by an affidavit of Ross Edwards, an Assistant Commissioner in the Department of Corrective Services, produced by the Crown. From that affidavit it does appear that the applicant's classification is influenced by the fact that many years ago he escaped from a juvenile institution and that has affected his classification within the prison system. What is clear from the affidavit, however, is that his medical condition has no bearing whatsoever upon his classification. 8 Mr McGill also argued that his Honour's discount of fifteen percent for the pleas of guilty did not adequately reflect their value. However, in my view, that submission also is not made good. As I have said, his Honour observed that the Crown case was a strong one, although that leaves in tact the utilitarian value of the pleas, but his Honour also observed they were entered late. It may well be that was because it was some time before the applicant had the benefit of appropriate legal advice. Nonetheless, they were late and his Honour was entitled to assess their value as somewhat less than might have been the case if they had been entered at the outset. I see no error in his Honour's approach in his assessment of the value of the applicant's pleas of guilty. 9 I have considered for myself the question of whether the sentences might be said to be manifestly excessive in light of the material before his Honour but they do not appear to me to be so. These were quite serious offences, albeit perhaps somewhat immature in their execution, committed by a man with a considerable record so that he could not rely on an absence of prior convictions as a claim for leniency. 10 In all the circumstances it does not seem to me that his Honour fell into error which would warrant this court to intervene. I grant leave to appeal but I propose that the appeal be dismissed. 11 KIRBY J: I agree. 12 HIDDEN J: The orders of the court will be those which I have proposed. **********