McNally v Regina [2006] NSWCCA 248

New South Wales Court of Criminal Appeal

CITATION: McNally v Regina [2006] NSWCCA 248

HEARING DATE(S): 2 August 2006

JUDGMENT DATE: 2 August 2006

JUDGMENT OF: Beazley JA at 1; Hulme J at 18; Hislop J at 20

EX TEMPORE JUDGMENT DATE: 08/02/2006

DECISION: Grant leave to appeal; appeal dismissed.

CATCHWORDS: SENTENCING – prisoner to serve custodial sentence in protective custody – no evidence as to future custodial circumstances at time of sentencing – sentence actually being served in protective custody – no other sentence warranted in law - SENTENCING – commencement date of sentence – where delay in sentencing process – whether commencement date should be date of arrest or charge – principle of totality – no other sentence warranted in law

LEGISLATION CITED: Crimes Act 1900 (NSW) s 112(1)

PARTIES: Martin Joseph McNally (Appellant) Regina (Respondent)

FILE NUMBER(S): CCA 2006/981

COUNSEL: In person (Appellant) Ms J Dwyer (Crown)

SOLICITORS: N/A (Appellant) S Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3163

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 21 October 2005

- 1 - IN THE COURT OF CRIMINAL APPEAL CCA 2006/981

BEAZLEY JA HULME J HISLOP J

2 August 2006 MARTIN JOSEPH McNALLY v REGINA Judgment 1 BEAZLEY JA: Mr McNally has brought an application for leave to appeal from sentences imposed by his Honour Judge Marien on 21 October 2005 in respect of five break enter and steal offences which were committed between 16 October 2004 and 9 December 2004. The offences of break enter and steal attract a penalty of 14 years imprisonment: Crimes Act 1900 (NSW) s 112(1). 2 At the time that Mr McNally committed the offences, he was on bail in respect of another break enter and steal offence in respect of which he had been charged on 9 July 2004. 3 On 14 December 2004, five days after the commission of the last of the break enter and steal offences which are the subject of the present application for leave to appeal, he committed a further break enter and steal offence. He was arrested on the same day. Subsequently, on 27 January 2005, he was sentenced to a term of imprisonment of 15 months with a non-parole period of ten months. 4 In his submissions to this Court, Mr McNally has indicated that at that time, that is on 14 December 2004, he made full disclosure to the police that he had committed the last of the offences in respect of which he is before this Court, that is, the offence of 9 December 2004 which was the offence of break enter and steal in respect of premises at St Helens Park. He was not, however, charged at that time with that offence. 5 The charges in respect of all of the present offences were not laid until 14 April 2005. At that stage Mr McNally was four months into the non-parole period that had been imposed in respect of one of the earlier break enter and steal offences in respect of which he was sentenced on 27 January 2005. 6 Mr McNally pleaded guilty to the five offences at the Liverpool Local Court on 20 July 2005. He came to be sentenced by his Honour Judge Marien on 21 October 2005, as I have already indicated. 7 His Honour dealt with the offences in the order in which they were charged which, as I understand it, was the order in which they were committed. In respect of each of the first two offences his Honour imposed a sentence on Mr McNally of a fixed term of imprisonment of 12 months commencing on 14 June 2005, expiring on 13 June 2006. It will immediately be apparent that by nominating the commencement date of 14 June 2005, his Honour made those sentences partially concurrent with the sentence that he was already serving for the break enter and steal offence for which Mr McNally was sentenced on 27 January 2005. That was a course that was open to his Honour but on one view might be considered to have been a generous approach to the sentencing task, given that the reason why Mr McNally was in custody at that time was in respect of an offence in respect of which he had already been sentenced. In other words he was not in pre-sentence custody in respect of these two offences. 8 In respect of the third and fourth offences his Honour also imposed a fixed term of imprisonment of 12 months. Each sentence was to commence on 14 December 2005 and to expire on 13 December 2006. There was thus a partial accumulation with the sentences imposed in respect of the first and second offences. 9 His Honour then sentenced in respect of the fifth offence, which is the St Helens Park offence. His Honour sentenced Mr McNally to a non-parole period of 15 months imprisonment to commence on 14 June 2006 and to expire on 13 September 2007, and a total sentence of two years and six months, commencing on 14 June 2006 and expiring on 13 December 2008. The commencement date of 14 June 2006 for that offence thus represents a partial accumulation with the sentences imposed for the third and fourth offences. 10 Mr McNally makes two complaints in respect of the sentencing process. First, he raises an issue about the terms of his imprisonment and, in particular, indicates that the fact that he, for the time of his custodial sentence, has been and will be in protective custody means that he will be serving his sentence in a more onerous custodial environment than otherwise would be the case. This matter was raised before his Honour Judge Marien and his Honour had regard to it. 11 The difficulty that Mr McNally faced at that time, however, was that he did not have all the information available to him in respect of the likelihood of him continuing to remain under the more onerous custodial conditions. His Honour, in accordance with principle, said that he could not make an assumption as to the future custodial circumstances and thus only had regard to that which had gone before. 12 The custodial circumstances in which Mr McNally is serving, has served and appears will likely continue to serve, are relevant considerations to which this Court ought to have regard. I will return to that shortly. 13 The second ground of appeal relates to the commencement date in respect of the fifth offence, namely the St Helens Park offence. Mr McNally submits that the commencement date for that offence should have at least been the date of charge, that is, 14 April 2005, or, preferably, the date of arrest, 14 December 2004. In essence, as I understand the gravamen of his complaint, it is that it was not his fault that there was a delay in the charging process and that as Mr McNally had made that offence known to the police he should not, in effect, be adversely affected by having the sentence for that offence commence much later than the date of charge. The commencement date, as I have indicated, being 14 June 2006, was about 14 months after the date of charge. 14 Although I understand why Mr McNally might raise this problem, the difficulty with it is that his Honour was required to impose sentences in respect of all five offences. This involves imposing appropriate punishment in respect of each offence and appropriate total punishment for all of the offences. It was fortuitous that the fifth offence was one in respect of which Mr McNally had made admissions about to the police at a considerable time prior to the commencement date and, indeed, a considerable time prior to the date of charge. That is not a reason, however, to backdate the offence to the date of charge. 15 There is no error in the manner in which his Honour approached all of the offences, both in relation to the appropriateness of the individual sentence and the totality of all the sentences. Indeed, had any other total sentence been imposed in this matter there would have been a serious question as to whether any such sentence would have been manifestly inadequate. As it was, the sentences imposed by his Honour were extremely lenient. 16 For these reasons, Mr McNally has not established that there was any error in the sentencing process. Even taking into account the additional matter which has been put before the Court in respect of the ongoing circumstances of his custody, this is not a matter where any other sentence is warranted in law and for that reason I would grant leave to appeal but I would dismiss the appeal. 17 I only add one matter. Mr McNally has very frankly conceded that his criminal record is serious. Indeed, he could not suggest otherwise. The seriousness of that record is a matter obviously of great concern to the community. Having said that, he does appear to be wishing to make definite efforts towards his personal rehabilitation and he ought to be encouraged to continue with those efforts. 18 HULME J: I agree with the orders proposed and substantially with her Honour's reasons. I would add only this, against the statutory penalty of 14 years for each offence, the penalty imposed on the applicant of a total period of three years and six months including a non-parole period of two years and three months for five offences of breaking entering and stealing is, in my view, extraordinarily low, particularly is this so considered against the applicant's prior history, which includes something of the order of ten prior convictions for the same offence, namely, breaking entering and stealing together with a number of other offences of dishonesty. 19 At least four of the purposes of sentencing – general deterrence, personal deterrence, retribution and the protection of the community – in my view demand that if Mr McNally continues in his activities as he has done the sentence for each such offence in the future should be sufficiently heavy to operate as a real disincentive to him. The sentences so far imposed, with the possible exception of those presently being served, clearly have not been long enough to operate as such a deterrent but I agree with the presiding Judge's remarks to the effect that one may hope that Mr McNally does, released from his present incarceration, succeed in getting his life on to a reasonable footing. 20 HISLOP J: I agree with Justice Beazley. 21 BEAZLEY JA: The orders of the Court are as I have proposed. **********