MIRINGAORANGI v R [2006] NSWCCA 397

New South Wales Court of Criminal Appeal

CITATION: MIRINGAORANGI v R [2006] NSWCCA 397

HEARING DATE(S): 20 July 2006

JUDGMENT DATE: 20 July 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hall J at 24

DECISION: Leave to appeal granted; Appeal dismissed

PARTIES: Regina Thomas Miringaorangi

FILE NUMBER(S): CCA 2006/792

COUNSEL: Crown: P Barrett Applicant: D Carroll

SOLICITORS: Crown: S Kavanagh Applicant: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1118

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 15/08/05

- 7 - IN THE COURT OF CRIMINAL APPEAL 2006/792

McCLELLAN CJ at CL HULME J HALL J

Thursday, 20 July 2006 Thomas MIRINGAORANGI v R Judgment 1 McCLELLAN CJ AT CL: I agree with Hulme J. 2 HULME J: On 15 August 2005 Judge English sentenced the applicant to three offences, he having pleaded guilty to each of them on 24 February 2005. 3 The charges to which the applicant pleaded guilty, the statutory provision under which they arise, and the maximum penalties prescribed are as follows: Count 1: On 23 July 2001, in circumstances of aggravation, viz. being in company, he broke and entered a dwelling house and committed a serious indictable offence therein, namely detained Mark Whyte without his consent with the intention of obtaining an advantage to himself - Crimes Act, s112(2) - 20 years imprisonment. Count 2: On 23 July 2001, in circumstances of aggravation, viz. being in company, he broke and entered and committed a serious indictable offence therein, namely detained Amanda Whyte without her consent with the intention of obtaining an advantage to himself - Crime Act, s112(2) - 20 years imprisonment. Count 3: On 23 July 2001, while being in company he robbed Mark Whyte - Crimes Act s97(1) - 20 years imprisonment. 4 Taken into account in connection with the third of these offences were two offences on a Form 1. The first was obtaining a financial benefit by deception and the second was an attempt to obtain a financial benefit by deception. The first offence was constituted by, on 23 July 2001, withdrawing $1,000 cash from Mrs Whyte's bank account, using a keycard the offenders had stolen and PIN number they had obtained and the second by, on the following day, attempting to obtain more money in the same manner. 5 The sentences imposed by her Honour in respect of these offences were, respectively: Count 1: Imprisonment for six years including a non-parole period of four years commencing on 3 January 2005. Count 2: Imprisonment for six years including a non-parole period of four years commencing on 3 January 2005. Count 3: Imprisonment for a fixed term of three years and nine months commencing on 3 January 2005. 6 In the result the three sentences were all wholly concurrent, with the sentence on count 3, which took into account the Form 1 matters, wholly subsumed by the sentences on Counts 1 and 2. 7 The sole ground of appeal is Her Honour erred in commencing the sentences from 3 January 2005 in that she failed to accurately take into account the time spent in custody prior to sentence.