McCabe v Regina [2006] NSWCCA 220

Reported Decision : 164 A Crim R 344

New South Wales Court of Criminal Appeal

CITATION: McCabe v Regina [2006] NSWCCA 220

HEARING DATE(S): 6 February 2006

JUDGMENT DATE: 24 July 2006

JUDGMENT OF: Beazley JA at 1; Simpson J at 32; Rothman J at 33

DECISION: 1. Grant leave to appeal; 2. Appeal allowed in part; 3. Vary the non-parole period in respect of the offence of 'break, enter and steal' committed on 27 September 2004 so as to provide for a non-parole period of two years and three months commencing on 22 March 2007, with the applicant being eligible for parole on 21 June 2009.

CATCHWORDS: CRIMINAL LAW – sentencing – appeal against severity – aggravating factors – whether multiple victims across range of offending – multiple offences but not multiple victims in relation to each offence – not an aggravating factor - SENTENCING – prior convictions – prior convictions are not an aggravating factor - SENTENCING – calculation of non-parole period – pre-sentence custody served must be taken into account in setting non-parole period – trial judge erred in deducting pre-sentence custody from the sentence imposed – trial judge ought properly to have backdated the commencement of the sentence - SENTENCING – re-sentencing – Court must be of opinion that some other sentence is warranted in law and should have been passed – no other sentence warranted in all the circumstances of the offences – interference to correct the non-parole period only

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(1), 21A(2)(d), 21A(2)(j), 21A(2)(m), 21A(4), 33 LEGISLATION CITED: Crimes Act 1900 (NSW) s 112(1) Criminal Appeal Act 1912 (NSW) ss 5(1)(c), 5AF(3), 6(3) Drug Court Act 1988 (NSW) ss 12, 24