McDonald v Regina [2011] NSWCCA 2

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McDonald v Regina [2011] NSWCCA 2 Hearing dates: 31 January 2011 Decision date: 31 January 2011 Before: Beazley JA at 1 Hulme J at 14 Harrison J at 16 Decision: 1. Extension of time granted; 2. Leave to appeal granted; 3. Appeal dismissed. Legislation Cited: Crimes Act 1900 Category: Principal judgment Parties: Tariq McDonald (Applicant) Regina (Respondent) Representation: Counsel: J Doris (Applicant) V Lydiard (Respondent) Solicitors: Bannisters Lawyers and Attorneys (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2008/16100; 2008/16102 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-09-25 00:00:00 Before: Knox DCJ File Number(s): 2008/16100

Judgment 1BEAZLEY JA : The applicant pleaded guilty to four counts; one count of taking and driving a conveyance contrary to the Crimes Act 1900 , s 154A(1)(a) which carries a maximum penalty of five years imprisonment. That offence related to what was described by his Honour as essentially an incident of car stealing on 11 September 2007 at Merrylands. 2The other three offences occurred in November 2007. There was a count of aggravated break and enter and committing a serious indictable offence brought under of the Crimes Act , s 112(2) which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years imprisonment. 3The third count was one of knowingly driving and stealing a conveyance under the Crimes Act , s 154A(1)(b) with a maximum penalty of five years imprisonment; and a final count also under the same provision of the Crimes Act of knowingly carry in or on a stolen conveyance. 4The s 112(2) offence related to a ram raid on an ATM. As I have said, there was a plea of guilty in respect of the charges and in respect of the principal charge the sentencing judge allowed a 25 per cent deduction for the early plea. 5His Honour imposed a total effective sentence upon the applicant of six years imprisonment with a non-parole period of four years and four months dating from the date that the applicant went into custody on 20 November 2007. 6The applicant seeks leave to appeal against sentence and has advanced seven grounds. The applicant requires an extension of time, which should be granted. However, the essential complaint in respect of his Honour's sentencing remarks is that his Honour failed to give any weight to the evidence relating to the prospects of rehabilitation of the applicant, that evidence being given by the applicant himself, his father, his girlfriend, a letter from the employer, a potential employer, and a report from a psychologist. 7As part of the complaint in relation to the issue of rehabilitation, it was submitted that his Honour was dismissive of the applicant having any prospects of rehabilitation and in that sense prejudged the issue. It was submitted that had his Honour given the evidence appropriate weight, or indeed any weight at all, the non-parole period would have been shorter. 8I do not consider that his Honour prejudged the matter of rehabilitation. It was apparent from his Honour's questioning during the course of the sentence hearing that his Honour was concerned that such material as he had before him, in respect of the applicant's prospects of rehabilitation, was, as his Honour said, merely formulaic, and that there was nothing concrete, distinctive or sufficiently persuasive in the evidence to satisfy him that the applicant had any substantial prospects of rehabilitation. 9The applicant's counsel has pointed out to the Court that the question of satisfying the Court that there were any real or substantial prospect of rehabilitation was a difficult one for the applicant, given that for the substantial period of time that he had been in gaol he had been on remand. It is accepted that whilst on remand a prisoner has little if any opportunity to undertake courses and the like to demonstrate in a more concrete way that there are real prospects of rehabilitation. 10Nonetheless, it was apparent that his Honour was concerned about the issue of rehabilitation and that his questioning was directed to that concern. There was nothing inappropriate in his Honour doing so. In reality, his Honour was directing questions to those who were giving evidence to obtain assistance in relation to what were very appropriate concerns. 11In any event, the sentence which his Honour imposed, even if it could be argued that there was a problem with the approach his Honour took during the course of the sentence hearing (I interpolate that we do not accept there was anything inappropriate in his Honour's approach), was entirely appropriate, given the seriousness of the applicant's offending. That seriousness was, in my opinion, well summarised by his Honour at p 12 of his remarks, when he referred to the planning and premeditation involved, the extent of the damage involved, the number of vehicles that were stolen, that this was a joint criminal enterprise involving two other persons and the fact that there has been no offer, or no attempt, at restitution. 12In that regard, I remain mindful of the applicant's own evidence that he just has no way of making restitution, but it is still a fact that his crime was very serious and very serious damage was done to the property of others. There was another very significant factor relevant to sentencing, which is that the offender was on conditional liberty at the time of these offences. 13In the circumstances, I am of the opinion that no lesser sentence was warranted in law. I would only add that counsel for the applicant has put forward, in a very measured way, all the appropriate things that could have been put forward on behalf of the applicant, but notwithstanding that I have come to the view that no lesser sentence is warranted in law, and whilst I would grant leave to appeal, I would dismiss the appeal. 14HULME J : I agree with the orders proposed by Beazley JA and with her Honour's reasons. I would however add this: his Honour made the sentences for the offences committed in November 2007 entirely concurrent and this notwithstanding that while the robbery may have been the ultimate goal, there were three separate offences, committed at three different times, and involving three different victims, at least two of whom - the shopping centre where the ATM was situated and the owner of the vehicle used as a ram - were occasioned significant loss. His Honour seems not to have taken the loss suffered by the latter owner into account 15In my view there was no justification for his Honour to make the three sentences for these offences entirely concurrent and, had I been minded to interfere with the sentence imposed for the robbery offence, I would have ensured that there was some degree of accumulation. The result may well have been that the Applicant was no better off. 16HARRISON J : I agree with the remarks of the presiding judge and with the orders that she proposes. 17BEAZLEY JA : The orders of the Court are: 1. Extension of time granted; 2. Leave to appeal granted; 3. Appeal dismissed.