Regina v McRae [2005] NSWCCA 13

New South Wales Court of Criminal Appeal

CITATION: Regina v McRae [2005] NSWCCA 13

HEARING DATE(S): 4/2/05

JUDGMENT DATE: 25 February 2005

JUDGMENT OF: Dunford J at 1; Bell J at 2

DECISION: Time for filing the notice of appeal extended to 21 September 2004; Application for leave to appeal granted; Appeal be dismissed.

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

R v Ellis (1986) 6 NSWLR 603 R v Engert (1995) 84 A Crim R 67 R v KM [2004] NSWCCA 65 CASES CITED: R v Letteri (NSWCCA unreported, 18 March 1992) R v Ponfield (1999) 48 NSWLR 327 R v Wright (1997) 93 A Crim R 48

Regina (Respondent) PARTIES: Steven Ronald McRae (Applicant)

FILE NUMBER(S): CCA 2004/2407

B Knox SC (Crown) COUNSEL: H Dhanji (Applicant)

S Kavanagh SOLICITORS: SE O'Connor (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3170

LOWER COURT JUDICIAL OFFICER: Sides DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2407

DUNFORD J BELL J

Friday 25 February 2005

Regina v Steven Ronald McRae Judgment 1 DUNFORD J: I agree with Bell J. 2 BELL J: This is an application for leave to appeal against sentences imposed on the applicant in the District Court at Campbelltown by his Honour Judge Sides QC (the Judge) on 23 February 2004. 3 The applicant was convicted of six counts of break, enter and steal contrary to s 112(1) of the Crimes Act 1900. The Judge took into account six further offences of break, enter and steal and one offence of attempted break, enter and steal on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). 4 On counts two to six, the applicant was sentenced to concurrent terms of four and a half years' imprisonment. A non-parole period of three years was specified. These sentences were backdated to commence on 24 September 2001. For the offence charged in count one, for which the further seven offences were taken onto account, the applicant was sentenced to a term of seven years' imprisonment to date from 24 March 2003. A non-parole period of four years was specified. In the aggregate, the applicant was sentenced to a term of eight and a half years' imprisonment with a non-parole period of five years commencing on 24 September 2001. 5 The maximum penalty for an offence contrary to s 112(1) of the Crimes Act is imprisonment for fourteen years. 6 The offences spanned a period of seven and a half months between 20 January 2001 and 2 September 2001. 7 There is no issue concerning the facts upon which the applicant was sentenced. The Crown has summarised them in written submissions and it is convenient to refer to that summary: "(a) 20 January, 2001, break enter and steal at the Nowra Golf Club, Nowra. $2795 in cash was stolen and considerable damage to the property caused (estimated to be $1928). (b) 27 February 2001 - break, enter and steal at Southern Rural Traders (Horseland), Moss Vale. Horse-related equipment valued at $11,320 was stolen. Damage was occasioned to the premises in the sum of approximately $300. (c) 17 March 2001 – break, enter and steal at Chilwood Grove, Berrima. Approximately $21,051.95 in property was stolen. There was also additional damage to the property of $4000. (d) 1 July 2001 – break, enter and steal at the Callala RSL Country Club, Callala as a result of which $11,858 in cash was stolen together with alcohol to the value of $565. Damage to the property was caused to the value of approximately $3,293.70. (e) 1 September 2001 – break, enter and steal at the Callala RSL Country Club, Callala Bay. Approximately $19,157 was stolen. Damage was caused to the premises to the value of $3,457.50. (f) Between 19 May, 2001 and 20 May 2001 – break, enter and steal at the premises of the Duke's Shell Garage, Mudgee Road, Lidsdale. Property valued at approximately $7000 was stolen and damage sustained to the premises totalling $3,500." 8 The modus operandi was similar in each of the offences. The applicant disabled the Telstra Service Pit wiring connections to the telephone alarm systems in each of the premises. The alarms were deactivated or rendered inoperative. The applicant then forced his way into the premises. Substantial damage was caused in the course of gaining entry or during the stealing of the subject property. 9 The seven offences taken into account on the Form 1 were committed over the period April 2001 to September 2001. Each was in the Moss Vale, Southern Highlands and South Coast area of New South Wales. Substantial damage was caused to the properties broken into in these instances. The modus operandi for each of these offences was the same as that for those to which the applicant pleaded guilty. 10 The total value of the property stolen in the offences the subject of the counts in the indictment was approximately $76,271 and the total amount of damage done in the course of the offences was approximately $15,000. The offences taken into account on the Form 1 involved the theft of property in an amount of approximately $13,239 and property damage in an amount of $33,289. None of the cash and very little of the property stolen has been recovered.