REGINA v Jana MALIK [2005] NSWCCA 334

New South Wales Court of Criminal Appeal

CITATION: REGINA v Jana MALIK [2005] NSWCCA 334

HEARING DATE(S): 12 September 1005

JUDGMENT DATE: 12 September 2005

JUDGMENT OF: Mason P at 1; Grove J at 11; Buddin J at 12

DECISION: Leave granted; Appeal against sentence dismissed

CATCHWORDS: Appeal against sentence - break and enter offences - aggregate non-parole period greater than 75 percent of aggregate head sentences - s44(2) Crimes (Sentencing Procedure) Act 1999 - trial judge did not impose such a sentence inadvertently - no reason in law for a lesser sentence to be imposed. (ND)

REGINA PARTIES: Jana MALIK

FILE NUMBER(S): CCA 2005/986

Applicant: R J Button COUNSEL: Respondent: P G Ingram

Applicant: S E O'Connor (Legal Aid Commission) SOLICITORS: Respondent: S Kavanagh (Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 04/11/0675

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

IN THE COURT OF CRIMINAL APPEAL CCA 2005/986

MASON P GROVE J BUDDIN J

Monday 12 September 2005

REGINA v Jana MALIK Judgment

1 MASON P: The applicant tenders a single ground in her proposed appeal against sentence. She submits that, as a result of cumulation, the sentencing judge erroneously imposed an aggregate non-parole period greater than 75 percent of the aggregate head sentences. 2 The applicant pleaded guilty to two counts in the indictment, each involving breaking and entry of a dwelling house and the theft of items of valuable personal property. Each offence contravened s112(1) of the Crimes Act and attracted a maximum penalty of 14 years imprisonment. 3 The applicant was detected by fingerprints and DNA evidence. She pleaded guilty to both matters in the District Court. Aged 34 at the date of sentence, she had a very long-standing addiction to heroin that had led her to commit offences of varying degrees of seriousness over many years. She had previously served sentences of full time imprisonment on a number of occasions. The sentencing judge, Judge Armitage, correctly regarded the offences as serious and found that there was nothing in the offender's record that was of any assistance to her. 4 In his Honour's abbreviated extempore reasons, the sentencing judge addressed various matters as required by s21A(2) of the Crimes (Sentencing Procedure) Act 1999, having regard to the plea of guilty and to the "great assistance" as documented in a letter provided to the judge. His Honour indicated that the 50 percent discount of an otherwise appropriate penalty was appropriate. The judge stated that in his view, there were no special circumstances present in the particular case. He proceeded to sentence in the following terms: Jana Malik, for the offence at Sydenham I sentence you to a fixed term of imprisonment to date from today, 19 November 2004 to expire on 18 August 2005. I decline to set a non-parol period. I do that because I intend imposing a partly cumulative sentence.