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 :- "[15] In view of the various matters identified, and his Honour's findings that the applicant had a genuine desire to rehabilitate himself, yet lacked " the personal resources to do so ", having " only recently gained security and stability in the form of a family ", the case was one where, in accordance with the principles considered in R v Simpson [2001] NSWCCA 534, it admittedly was open for a finding of special circumstances to be made. However, it was a matter within discretion. As was pointed out in R v Bertoncello NSWCCA 5 November 1997: "Establishing facts which, in isolation or in aggregate, have the character of special circumstances, does not render mandatory the variation of the statutory ratio." [16] That observation was made at a time when there was a line of authority, now qualified by more recent decisions, to the effect that it was the need for, or the desirability of, the offender being the subject of an extended period of conditional release upon supervision which was the trigger for such a finding. While a wider range of considerations may now be taken into account, it still remains the case that the sentence must be one which ensures that the time that the offender actually spends in prison reflects all of the circumstances of the offence, including its objective gravity and any need for deterrence: See R v Simpson at para 65.[17] In order for the Court to intervene it must be satisfied that a lesser sentence, in one or other of its components, was warranted in law or should have been imposed: s6 (3) Criminal Appeal Act 1912 and see R v Simpson at paras 79 to 80 and para 100, and R v Cook [2002] NSWCCA 140 at para 20." 7 It was also contended on behalf of the applicant that his Honour failed to give due weight to the applicant's subjective circumstances. As Newman AJ held in the s 5AF matters, the applicant's subjective circumstances were of very little assistance to him in terms of mitigation. Again, having regard to the prisoner's antecedents and the nature of the crime, this Court, like Newman AJ in his matters, is of the view that the sentence imposed by his Honour was in fact at the bottom of the range of appropriate sentences for this matter. In short this Court is not satisfied that a lesser sentence was warranted in law and should have been imposed. Accordingly this Court should not intervene. 8 Because the matter is of some importance the Court believes that leave should be granted but the appeal refused. Accordingly the Court orders as follows :- 1. Leave to appeal granted 2. Appeal dismissed ********** Last Modified: 11/29/2004 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. 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