New South Wales Court of Criminal Appeal CITATION: FARRELL, Michael Anthony v R [2009] NSWCCA 77 HEARING DATE(S): 25 March 2009 JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Rothman J at 3 EX TEMPORE JUDGMENT DATE: 25 March 2009 (i) Leave to appeal be granted; DECISION: (ii) Appeal be dismissed. CATCHWORDS: CRIMINAL LAW – appeal – sentence – two sentences for armed robbery – no issue of principle – complaint concerning totality of sentence when combined with sentence imposed by Local Court for break enter and steal to which the sentences under appeal are to be served consecutively – no identifiable or manifest error – leave to appeal granted, appeal dismissed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Pearce v R [1998] HCA 57; 194 CLR 610 CASES CITED : R v Ibrahim [2005] NSWCCA 43 Robertson v R [2009] NSWCCA 38 PARTIES: FARRELL, Michael Anthony (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2006/00008380 COUNSEL: A Cook SC (Applicant) P A Leask (Respondent) SOLICITORS: Legal Aid (Applicant) Office of the Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/51/0213 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 7 December 2007 IN THE COURT OF CRIMINAL APPEAL 2006/00008380 McCLELLAN CJ at CL BUDDIN J ROTHMAN J 25 MARCH 2009 FARRELL, Michael Anthony v R EX TEMPORE JUDGMENT 1 McCLELLAN CJ at CL: I agree with Rothman J. 2 BUDDIN J: I agree with Rothman J. 3 ROTHMAN J: Michael Anthony Farrell seeks leave to appeal against the sentence imposed on him by his Honour Acting Judge Boulton on 7 December 2007. His Honour sentenced Mr Farrell for two armed robberies (one occurring on 8 July 2006 and one occurring on 9 July 2006) to imprisonment for 6 years with a non-parole period of 4 years and 6 months for each offence and ordered that the sentences apply partly concurrently by commencing the second sentence 6 months later than the first. 4 Mr Farrell raises, essentially, one ground of appeal being that the sentencing judge did not have regard (or proper regard) to the principle of totality. That complaint concerns the relationship between the "compendious non-parole periods and the non-parole period that had been imposed in January 2007." 5 The detailed circumstances of the commission of each offence are not particularly relevant. No complaint is made about the appropriateness of the individual sentences imposed for each offence. It is sufficient to note that on Saturday 8 July 2006 Mr Farrell robbed a service station in Coffs Harbour armed with a knife. He threatened a console operator at the station and stole $500-$600 in notes from the till which the operator had been forced to open. 6 On Sunday 9 July 2006, Mr Farrell robbed another service station in almost identical circumstances. At this armed robbery, he took approximately $140 in notes from the till. 7 Mr Farrell pleaded not guilty to the two charges, the issue at trial being one of identification and alibi. The jury convicted Mr Farrell on both counts. 8 As earlier stated, there is no complaint about each of the individual sentences imposed by his Honour. Nor, it seems, is there a complaint about the combined effect of each of the two sentences imposed. Rather, the complaint is that the two sentences imposed were imposed consecutively with the non-parole period of an earlier sentence, which, it is said, leads to an unfairness or lack of appreciation of the totality of the offences in question. 9 The two sentences imposed by Boulton ADCJ had an overall effect of imposing a 5-year non-parole period and a balance of term of 18 months. This is a ratio that is not more than one-third of the non-parole period, even in the overall sentence, and therefore conforms with the provisions of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. It was unnecessary, pursuant to the provisions of the Crimes (Sentencing Procedure) Act for his Honour to have found special circumstances. It is not suggested that his Honour "overlooked" the ratio of 3:1. 10 As has been made clear, on a number of occasions, s 44(2) of the Act does not prohibit a court from setting a period for the balance of the term which is less than one-third of the non-parole period. The discretion reposed in the court allows the sentencing judge to determine the ratio, within the constraints imposed by s 44(2), as the sentencing judge considers appropriate and bearing in mind the facts of a particular offender: see R v Ibrahim [2005] NSWCCA 43; Robertson v R [2009] NSWCCA 38. 11 As was the case in Robertson, the departure from the 3:1 ratio in the sentence imposed by his Honour is extremely minor. As was made clear in Pearce v R [1998] HCA 57; 194 CLR 610: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." ( Pearce , supra, per McHugh, Hayne and Callinan JJ at [45].) 12 The difficulty in the present proceedings, as counsel for Mr Farrell submits, is that the sentences imposed were imposed consecutively with the sentence imposed by the Local Court for a break enter and steal, which had occurred on an earlier occasion. Concurrent sentences are appropriate where the offences, though separate, are substantially contemporaneous and connected. Thus, even though the two offences for which Acting Judge Boulton sentenced Mr Farrell were one day apart, they occurred over a short time, involved similar criminality and a particular episode of criminality. Therefore it was appropriate to adjust the commencement date of the sentences to account for the similarities but also reflect the differences in the two crimes committed. 13 In the case of the sentence imposed by the Local Court, relevantly a 10-month sentence for break enter and steal, the criminal conduct occurred one month before the armed robberies, namely at a time unrelated to the offences for which Boulton ADCJ sentenced, they were not either a single episode or over a short time, nor were they events of a similar kind. In the circumstances, it was not inappropriate for his Honour to make the sentences that he imposed consecutive with the sentence imposed by the Local Court. 14 There is no absence of a proper regard for totality, nor is there a failure by his Honour to take into account the subjective features of Mr Farrell in imposing the sentences that he did and in rendering them consecutive with the sentence imposed by the Local Court. 15 The overall effect of the three sentences imposed (i.e. by the Local Court for break enter and steal and by the District Court for the two counts of armed robbery) do not reflect any identifiable error relating to totality or otherwise and are not, even in an overall sense, excessive or manifestly excessive. For these reasons, the ground of appeal should be rejected. 16 I propose that the Court makes the following orders: (i) Leave to appeal be granted; (ii) Appeal be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.