REGINA v. GRUBE [2005] NSWCCA 140

New South Wales Court of Criminal Appeal

CITATION: REGINA v. GRUBE [2005] NSWCCA 140

HEARING DATE(S): Friday 1 April 2005

JUDGMENT DATE: 14 April 2005

JUDGMENT OF: Grove J at 1; Howie J at 2; Hall J at 6

DECISION: Application dismissed.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes Act 1900

Attorney General's Application No. 1 of 2002 (2002) 56 NSWLR 146 CASES CITED: Bougdis (1989) 41 A. Crim. R. 125 Barton (2001) 121 A. Crim. R. 184

REGINA v. PARTIES: GRUBE, Shannon James

FILE NUMBER(S): CCA 2004/3277

Crown: P. Barrett COUNSEL: App: A. Haesler, SC

Crown: S. Kavanagh SOLICITORS: App: S.E. O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0728; 03/11/0730; 04/11/0488

LOWER COURT JUDICIAL OFFICER: Patten, DCJ.

IN THE COURT OF CRIMINAL APPEAL 2004/3277

GROVE, J. HOWIE, J. HALL, J.

THURSDAY 14 APRIL 2005 REGINA v. SHANNON JAMES GRUBE Judgment

1 GROVE, J: I agree with Hall, J. 2 HOWIE J: I have the benefit of having read the judgment of Hall J in draft. I agree with his Honour's reasons and the orders he proposes but I wish to add a brief comment. 3 Section 33(3) of the Crimes (Sentencing Procedure) Act provides:-

If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account. 4 It seems to me that, if the argument mounted by Mr Haesler SC as to the effect to be given to the judgment of the Chief Justice in Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146 were accepted, the word "maximum" in s 33(3) would be otiose. If the court sentencing for the principal offence was restricted to a penalty that was within the range of sentences that could have been imposed had the further offence not been taken into account, the sentence for that offence could never exceed the relevant maximum penalty, because it would only be if the principal offence itself warranted the maximum penalty that such a penalty could be imposed. 5 The reference to the maximum penalty appears in s 33(3) because the legislature understood that the sentence to be imposed for the principal offence, taking into account the further offences, could exceed the sentence that would have otherwise been appropriate for the principal offence by a very considerable margin. But it recognised that there should be some limit imposed upon the effect to be given to the further offences and that was to be the maximum penalty that could have been imposed upon the principal offence standing alone. The terms of s 33(3) are in my view clearly inconsistent with the argument advanced on the part of the applicant and this is a reason further to those given in Hall J's judgment for its rejection. 6 HALL, J: In this application for leave to appeal against the severity of sentences imposed upon the applicant by Patten, DCJ. on 4 June 2004, a question has arisen as to the application of the provisions of Division 3 Part 3 of the Crimes (Sentencing Procedure) Act 1999. 7 It was contended on behalf of the applicant, inter alia, that the sentencing judge had, when bringing into account additional charges contained in the Form 1, imposed a sentence which was out of all proportion to that which would reflect the objective seriousness of the principal offence, which was a count of break and enter a dwelling house and commit serious indictable offence (stealing) (s.112(1) Crimes Act 1900, maximum penalty 14 years). 8 The point argued in support of the submission that the sentence was manifestly excessive raises a question of some importance in the application of the statutory scheme under Division 3 Part 3 of the Crimes (Sentencing Procedure) Act 1999. 9 Before coming to that question, however, it is necessary to state the facts concerning the sentences and in particular concerning the principal offence in the indictment with respect to count 3 and certain matters relevant to the Form 1 offences. Before doing so, however, I should refer to some background matters.