Malcolm v R [2006] NSWCCA 323

New South Wales Court of Criminal Appeal

CITATION: Malcolm v R [2006] NSWCCA 323

HEARING DATE(S): 11/8/06

JUDGMENT DATE: 10 October 2006

JUDGMENT OF: Tobias JA at 1; Howie J at 2; Rothman J at 3

DECISION: a. leave to appeal granted;; b. appeal dismissed.

CATCHWORDS: CRIMINAL LAW - CRIMINAL APPEAL - sentence appeal - balance between general deterrrence and rehabilitation where applicant suffers from intellectual disability - no manifest excess in sentence

LEGISLATION CITED: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW)

R v Engert (1995) 84 A Crim R 67 CASES CITED: R v Veen (No. 2) (1988) 164 CLR 476 R v Wright (1997) 93 A Crim R 48

PARTIES: Ricky Malcolm Regina

FILE NUMBER(S): CCA 2006/863

COUNSEL: J Manuell Virginia Lydiard

SOLICITORS: J Witmer S Kavanagh (Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0975

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 9/12/05

- 1 - IN THE COURT OF CRIMINAL APPEAL 2006/863

TOBIAS JA HOWIE J ROTHMAN J

10 October 2006 RICKY MALCOLM v REGINA Judgment

1 TOBIAS JA: I agree with Rothman J. 2 HOWIE J: I agree with Rothman J. 3 ROTHMAN J: Ricky Malcolm applies for leave to appeal the sentence imposed by his Honour Judge Blackmore of the District Court on 9 December 2005. The applicant had pleaded guilty to the offence of aggravated robbery contrary to s.95(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years' imprisonment. He was sentenced by Blackmore DCJ to a non-parole period of 2 years' imprisonment, to date from 22 January 2005 to 21 January 2007, and thereafter a parole period of 1 year and 4 months, expiring on 21 May 2008; the total sentence is 3 years, 4 months. 4 The grounds of the appeal, and application for leave to appeal, raise manifest excess in the sentence, and the balance between general deterrence and rehabilitation in circumstances where the applicant, as in this case, suffers from an intellectual disability. 5 The details of the facts are irrelevant but there needs to be some understanding of the nature of the offence. Essentially the offence arose when the applicant, leading two friends, assaulted the victim on a Saturday evening outside Central railway station. The applicant stole the victim's mobile phone. The offence occurred on 22 January 2005 and it would not yet have been dark. The assault was motivated by a desire to obtain money and was totally unprovoked. It involved stalking, threatening, terrifying and assaulting the victim before robbing him. 6 Shortly afterwards the applicant was arrested and had in his possession the mobile phone. After initially denying that he had committed the offence, the applicant pleaded guilty. 7 The applicant was described in a psychologist's report as being "probably in the borderline range" of intelligence.