New South Wales Court of Criminal Appeal CITATION: Hunt v Regina [2006] NSWCCA 28 HEARING DATE(S): 10 February 2006 JUDGMENT DATE: 10 February 2006 JUDGMENT OF: Handley JA at 1, 28; Adams J at 25; Latham J at 27 EX TEMPORE JUDGMENT DATE: 02/10/2006 DECISION: Leave to appeal refused. CATCHWORDS: APPEAL – sentence – excessive – no question of principle PARTIES: Melissa Anne Hunt (Applicant) Regina (Crown) FILE NUMBER(S): CCA 2005/1622 COUNSEL: A Francis (Applicant) W Dawe QC (Crown) SOLICITORS: S O'Connor (Applicant) S Kavanagh (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 04/31/0387 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ LOWER COURT DATE OF DECISION: 02/10/2006 IN THE COURT OF CRIMINAL APPEAL 2005/1622 HANDLEY JA ADAMS J LATHAM J 10 FEBRUARY 2006 REGINA v MELISSA ANNE HUNT Judgment 1 HANDLEY JA: This is an application for leave to appeal by Melissa Hunt from sentences imposed on her by Coolahan DCJ at Newcastle on 4 February 2005. 2 The applicant pleaded guilty to four offences, two counts of break enter and steal, one count of break and enter with intent to steal, and one count of obtaining a valuable object by deception. 3 All the offences were committed within a period of a few days in June 2004 when the applicant was on parole having been released after completing the non-parole period of earlier sentences for similar offences. The applicant also asked for 10 offences to be taken into account on a Form 1. 4 Ms Francis, who appeared for the applicant, has submitted that the overall sentences imposed by the learned sentencing Judge were excessive bearing in mind that she will be separated from her five children until 23 December 2008. She is already substantially estranged from them and by the time she is released the possibility of becoming reconciled and re-establishing a family relationship with them will be significantly diminished. This is undoubtedly an important matter. 5 The applicant was arrested on 24 June 2004 and has been in custody since. She will be serving the balance of the sentences earlier imposed by Coolahan DCJ on 16 October 2002 until 29 July 2006. 6 The sentences imposed by the sentencing Judge in February 2005 were as follows: for the offence of obtaining a valuable object by deception committed on 23 June 2004 imprisonment for nine months to expire on 23 March 2005. This was wholly concurrent with the balance of the sentences for which parole had been revoked. 7 For the offence of break enter and steal with intent committed on 24 June the applicant was sentenced to a fixed term of 18 months to commence on 24 December 2004 and expire on 23 June 2006. This was concurrent not only with the balance of the earlier sentences but also with the previous sentence so that only an additional six months was imposed. 8 For the offence of break enter and steal committed on 18 June the applicant was sentenced to a fixed term of two years to commence on 24 June 2005 and expire on 23 June 2007. One year of this was concurrent with the previous sentence and it was substantially concurrent with the earlier ones. The effective additional time in custody as a result of this sentence was something under 12 months. 9 For the offence of break enter and steal committed on 16 June and taking into account the 10 matters on the Form 1 the Judge fixed a non-parole period of three years to commence on 24 December 2005 and expire on 23 December 2008. 18 months of this was concurrent with the previous sentence. The effective additional time in custody as a result of this sentence was 18 months. 10 On the basis of that material Ms Francis submitted, firstly, that the totality principle had not been respected when one had regard to the overall effect of all the sentences including the earlier ones for which parole had been revoked. As a result the applicant would be in custody with only a short break for a very long period. She also submitted that this constituted special circumstances. 11 The final matter was what she submitted was a breach of the De Simoni principle. His Honour referred to the fact that some of the offences were committed in company. It is not clear whether this was limited to offences on the Form 1. 12 The only offence which strictly attracted the De Simoni principle was the charge for break enter and steal with intent committed on 24 June 2004 when the applicant was in company with a male person and both were surprised by the householder when she returned home. The others were the offence of obtaining a benefit by deception and some of the offences on the Form 1 but these do not attract statutory aggravation. 13 I will deal with the last matter first. The sentence imposed by the Judge for the offence of break enter and steal with intent was a fixed term of 18 months which was wholly concurrent with the sentences for which parole had been revoked and substantially concurrent with other sentences he imposed. 14 His Honour imposed a sentence of two years for the offence of break enter and steal committed on 16 June and a term of four and a half years for the offence of break enter and steal on 16 June when the matters on the Form 1 were taken into account. It is apparent therefore that his Honour did not aggravate the sentence imposed for the offence on 24 June although it was committed in the company of a male person. 15 Turning now to special circumstances. The learned sentencing Judge said that he could not find any basis for special circumstances other than the need to adjust the non-parole periods so that the overall period did not depart from the statutory ratio. 16 In ordinary circumstances it would have been appropriate for his Honour to have found that the period of custody to be served under the sentences for which parole had been revoked in conjunction with the custody to be served under the sentences he was imposing constituted special circumstances. However the sentences for which parole had been revoked already reflected a finding of special circumstances. 17 They totalled four years and six months with a non-parole period of two years and three months indicating that a substantial discount had been allowed in the period of full-time custody. 18 The sentencing Judge had imposed the earlier sentences, although the transcript indicates that his Honour had no recollection of that occasion. However a finding of special circumstances is inherent in the structure of those sentences which were before him in the record of prior convictions. 19 His Honour referred to the fact that the applicant had previously been given leniency. At p 8 of his remarks on sentence he said: "It may well be that she currently has a resolve to try and do something about her drug addiction. Unfortunately chances given to her in the past have not been taken advantage of." 20 It is appropriate to read these remarks as referring in part to the fact that special circumstances had earlier been found and the period of full-time custody imposed in October 2002 had extended a considerable degree of leniency to her. 21 In the circumstances I have not been persuaded, despite Ms Francis' careful and attractive submissions, that there are special circumstances here which warranted a departure from the statutory ratio. 22 It is true that the total period in custody as a result of the sentence imposed by his Honour is substantial but the effective addition to her full-time custody under the earlier sentences was something under 12 months for one offence and 18 months for the other. 23 When one bears in mind that the applicant had to be sentenced for two offences of break enter and steal, one break and enter with intent to steal one offence of deception and 10 other offences on the Form 1, it seems to me that the total effect of the sentences imposed by his Honour in those circumstances was not disproportionate. 24 I would therefore propose that leave to appeal be refused. 25 ADAMS J: I agree with the order proposed by the presiding Judge and with his Honour's reasons. I wish simply to add this observation. 26 For myself I would have thought that the overall term of imprisonment to be served by this applicant, even taking into account the brief period during which she was at liberty, did constitute special circumstances in the context of her situation as a whole and those special circumstances would have justified a further adjustment in the non-parole period to that made by his Honour. However, I am not satisfied that in declining to make that adjustment his Honour erred and that his Honour's order was not within the proper exercise of his Honour's sentencing discretion. 27 LATHAM J: I agree with Handley JA. 28 HANDLEY JA: The order of the Court is leave to appeal is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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