REGINA v ROWLEY [2004] NSWCCA 388

New South Wales Court of Criminal Appeal

CITATION : REGINA v ROWLEY [2004] NSWCCA 388 revised - 23/11/2004 HEARING DATE(S) : 29 July 2004 JUDGMENT DATE : 12 November 2004

JUDGMENT OF : Adams J; Hislop J; Newman AJ DECISION : Leave to appeal granted; Appeal dismised

CATCHWORDS : Criminal law - sentencing - principles - Drug Court - competency of appeals - constitution of Court of Criminal Appeal Court of Criminal Appeal Act 1912 LEGISLATION CITED : Criminal Appeal Act 1912 Crimes Act 1900 R v Ebsworth [2002] NSWCCA 465 CASES CITED : R v Simpson [2001] NSWCCA 534 R v Bertoncellow NSWCCA 5 November 1997 R v Cook [2002] NSWCCA 140 PARTIES : Crown - Respondent Reggie Robert ROWLEY - Applicant FILE NUMBER(S) : CCA 60026/04 COUNSEL : S Kluss - Applicant E Wilkins - Respondent SOLICITORS : S O'Connor - Applicant S Kavanagh - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 2002/0207 FILE NUMBER(S) : LOWER COURT Milson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60026/04

ADAMS J HISLOP J NEWMAN AJ

12 November 2004 REGINA v Reggi Robert ROWLEY Judgment

1 THE COURT: The Court in an earlier judgment has dealt with the jurisdictional issues raised in this matter. As a result Newman AJ has, pursuant to s 5AF of the Court of Criminal Appeal Act 1912, determined the matters which have come before the Court pursuant to s 5AF of that Act. 2 It is now for the Court of Criminal Appeal sitting as a collegiate bench to determine the matter which it has determined comes before it pursuant to s 5(1)(c) of the Criminal Appeal Act. That matter involves the applicant's application to appeal against the part of his Honour Judge Milson's sentence involving the crime of aggravated break, enter and steal contrary to the provisions of s 112(2) of the Crimes Act 1900. That section of the Crimes Act stipulates a maximum penalty of 20 years imprisonment for the crime. In the event, his Honour imposed a sentence of imprisonment for two years and three months to date from 19 May 2003 and expire on 18 August 2005. That sentence involved concurrence with the sentence imposed for a similar crime in relation to the matters which fell within the concept of Category 1 crimes committed by the applicant. 3 The facts of the matter are in small compass. On 5 August 2002 at about 9.30 pm the victim of the crime retired to bed after checking that all the windows and doors of the subject premises were secured. On awakening the next day the victim found that the rear door had been opened and that property was missing. The missing property involved a Bank of Queensland access card, one black canvass bag containing a black leather wallet, a set of house and car keys with a lighter, a New South Wales driving licence, one pair of sunglasses, a Westpac Visa card and ready card, one Nokia telephone and $20 in cash. None of the saleable items were recovered and the victim claimed compensation in the sum of $3,063. It should also be noted that one of the bankcards which the applicant stole was used to obtain $1,000 which was the subject of the summary charge which was dealt with by his Honour at the same time as the offence with which this Court is dealing. As this Court found in its earlier judgment, the summary charge is not a matter which can be brought before this Court on appeal. 4 As was the case in the matter dealt with by Newman AJ pursuant to s 5AF of the Criminal Appeal Act, it was contended on the applicant's behalf that his Honour failed to give proper weight to the applicant's plea of guilty. It was also contended that his Honour should have set a non-parole period rather than fixing a single term. 5 It is relevant to observe that his Honour, by ordering that the sentence for the matter now before the Court be served concurrently with the matter dealt with under Category 1, paid due regard to the principle of totality when sentencing. 6 In relation to the matters falling under Category 1 (as is explained in the earlier judgment) Newman AJ held that, for his Honour to impose any lesser sentence for the crimes committed by the applicant which fell within that category, would be to impose a penalty which was less than the minimum which should have been imposed. This matter, as did the matter dealt with by Newman AJ under s 5AF, involved similar considerations to those dealt with by this Court in R v Ebsworth [2002] NSWCCA 465 where Wood CJ at CL (with whom Bell and Dowd JJ agreed) said :-