Regina v McGrath [2004] NSWCCA 440

New South Wales Court of Criminal Appeal

CITATION : Regina v McGrath [2004] NSWCCA 440 HEARING DATE(S) : 11/11/2004 JUDGMENT DATE : 8 December 2004

JUDGMENT OF : McColl JA at 1; Howie J at 2; Buddin J at 25 DECISION : Application for leave is granted and the appeal is allowed. The sentence imposed by Judge McGuire is quashed and in lieu the applicant is to be sentenced to 6 years from 19 January 2002. There is to be a non-parole period of 4 years which is to expire on 18 January 2006 the date upon which the applicant is eligible to be released to parole.

CATCHWORDS : Criminal Law - Sentencing - No matter of principle LEGISLATION CITED : Crimes Act 1900 - s 33B Criminal Procedure Act 1986 CASES CITED : Fordham (1997) 98 A Crim R 359 PARTIES : Regina v Shane McGrath FILE NUMBER(S) : CCA 2004/2024 COUNSEL : G. Rowling - Crown H. Dhanji - Applicant SOLICITORS : S. Kavanagh - Crown S. O'Connor - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0157 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2024

McCOLL JA HOWIE J BUDDIN J

WEDNESDAY 8 DECEMBER 2004 REGINA v SHANE McGRATH Judgment 1 McCOLL JA: I agree with Howie J. 2 HOWIE J: This an application for leave to appeal against a sentence imposed upon the applicant in the District Court following his plea of guilty on arraignment to an offence of using an offensive weapon to avoid lawful apprehension contrary to section 33B of the Crimes Act. That is an offence that carries a maximum penalty of 12 years imprisonment. In addition, the applicant asked Judge McGuire to take into account, when sentencing him for that offence, two matters on a Form 1 under the provisions of the Criminal Procedure Act. As a consequence his Honour sentenced the applicant to imprisonment for 8 years and specified a non-parole period of 6 years. The applicant is eligible to be released to parole on 18 January 2008. 3 There were three grounds of appeal originally filed. They complained in effect that, firstly his Honour failed to properly discount the applicant's sentence as a result of his plea of guilty; secondly, his Honour failed to properly consider whether there were special circumstances in determining the length of the non-parole period; and, thirdly, that the sentence imposed was manifestly excessive. On the day before the hearing of the application a further ground was filed asserting that there was a miscarriage of justice occasioned by the absence of evidence of the applicant's intellectual disability at the sentencing hearing. Leave was sought to add the further ground of appeal, notwithstanding that the original grounds were filed on 22 July this year and that a psychological report, upon which the new ground was based, is dated 27 September 2004. 4 The facts upon which the applicant was to be sentenced were contained in a statement of facts tendered before the District Court and set out in the sentencing remarks. They were not in dispute. The applicant, who is a car thief, was driving a stolen vehicle on the morning of 19 January 2002 when he picked up three youths with whom he was acquainted. They drove to the car park of a club in Tumbi Umbi where the applicant and his companions intended to steal another motor vehicle. The applicant entered a vehicle by the use of a screwdriver he carried for that purpose and attempted to start it by tampering with the ignition. Having failed in this attempt the applicant, with the assistance of the youths pushing the vehicle, attempted to jump-start it. 5 Security officers observed this activity on closed-circuit television. They attended the scene and apprehended the youths. The applicant, however, entered the stolen vehicle he had previously been driving. He drove out of the car park then over a grassed medium strip towards the group almost colliding with the security guards and the young persons they were detaining. The applicant then alighted from the vehicle brandishing a sharp object that he maintained was a screwdriver. He threatened the security guards, swinging the object in their direction and causing them to release the young persons. After two of the young persons entered the vehicle, the appellant drove off. He later dropped off his passengers and, coming upon a patrolling security van, drove into the rear of it. He then abandoned the stolen vehicle. Police arrested him later that morning. 6 As a result of this course of conduct the applicant faced sentence for the offence under s 33B(1)(b) of the Crimes Act in relation to his threats to the security guards using the screwdriver. In addition he asked his Honour to take into account on a Form 1 two offences of driving a conveyance without consent and an offence of driving in a manner dangerous. This last matter arose from the conduct of the applicant driving in the direction of the security guards. 7 The applicant was aged 33 years at the time of sentence. He has what his Honour described as an "appalling criminal history", much of it for stealing motor vehicles and other offences of dishonesty but including driving offences and violence against the person. He had received gaol sentences for such offences on numerous occasions. Most recently he was imprisoned for offences including using an offensive weapon and assaulting police officers. He was a disqualified driver at the time of the offence, and perhaps more importantly was on parole. Clearly this was a case where on its face a very significant gaol sentence was required, if for no other reason than personal deterrence notwithstanding that the applicant had spent most of his adolescence and early adulthood incarcerated. 8 However, there was a significant amount of material before his Honour as to the subjective circumstances of the applicant. There was in evidence a psychiatric report from Dr Tran of the Corrections Health Service. He recorded that the applicant had been diagnosed with Attentional Deficit Hyperactivity Disorder about two years earlier and had been prescribed medication to treat the disorder. The applicant reported to the doctor that he had been drinking alcohol from the age of 10 years and using amphetamine from the age of 14 until his last confinement to prison in 1999. The applicant had been admitted to the psychiatric ward of the prison on past occasions due to his self-harming behaviour resulting from his repeatedly cutting the main arteries in his arms. 9 Dr Tran gave the following opinion as to the applicant's mental state: