McCarthy v R [2011] NSWCCA 64

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McCarthy v R [2011] NSWCCA 64 Hearing dates: 28 October 2010 Decision date: 05 April 2011 Before: Handley AJA at [1] Adams J at [2] Howie AJ at [82] Decision: Leave to appeal is granted, the appeal is upheld and sentences substituted as follows: The overall sentence is seven years and six months with an effective non-parole period of five years and six months calculated as follows: Count 1: taking into account the Form 1 offence committed on 14-15 October 2007: A non-parole period of three years and six months commencing on 28 November 2007 and ending on 27 May 2011 with a balance of term of one year and six months commencing on 28 May 2011 and ending on 27 November 2012. Count 2: A non-parole period of nine months commencing on 28 February 2010 and ending on 27 November 2010 with a balance of term of six months commencing on 28 November 2010 and ending on 27 May 2011. Count 3: taking into account the Form 1 offence committed on 25 September 2007: A non-parole period of two years commencing on 28 November 2007 and ending on 27 November 2009 with a balance of one year from 28 November 2009 to 27 November 2010. Count 4: taking into account the Form 1 offence committed on 11 April 2005: A non-parole period of three years and six months commencing 28 November 2008 and ending on 27 May 2012 with a balance of term of one year and six months commencing on 28 May 2012 and ending on 27 November 2013. Count 5: A non-parole period of one year commencing on 28 November 2008 and ending on 27 November 2009 with a balance of term of six months commencing on 28 November 2009 and ending on 27 May 2010. Count 6: taking into account the Form 1 offence committed on 16-20 July 2008: A non-parole period of three years commencing on 28 May 2010 and ending on 27 May 2013 with a balance of term of two years commencing on 28 May 2013 and ending on 27 May 2015. Count 7: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year commencing on 28 November 2012 and ending on 27 November 2013. Count 8: A non-parole period of one year and six months commencing on 28 May 2010 and ending on 27 November 2011 with a balance of term of six months commencing on 28 November 2011 and ending on 27 May 2012. Count 9: taking into account the Form 1 offence committed on 23 August 2008: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year and six months commencing on 28 November 2012 and ending on 27 May 2014. Count 10: taking into account the Form 1 offence committed 23 August 2008: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year and six months commencing on 28 November 2012 and ending on 27 May 2014. Section 166: A fixed term of three months commencing on 28 February 2013 and ending on 27 May 2013. Catchwords: CRIMINAL LAW - Sentence appeal - Offences under s 97(2), 112(1)(a) of the Crimes Act 1900 and s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999 - Offences committed to satisfy drug habit. SENTENCING - Failure to refer to JIRS statistics or comparative cases - Whether sentences manifestly excessive - Inherent and aggravating features - Good prospects of rehabilitation - Early guilty plea - Substantial assistance to authorities - Disclosure of offences to authorities - Crimes (Sentencing Procedure) Act s 23(3) permits reasonable disproportion in sentence. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 23(3) Crimes Act 1900 s 97(2) Criminal Procedure Act 1986 s166 Road Transport (Safety and Traffic Management) Act 1999 s 42(2) Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Hili v R; Jones v R [2010] HCA 45 McIvor v R [2010] NSWCCA 7 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Bavadra [2000] NSWCCA 292 R v Berrell [2003] NSWCCA 85 R v Evans [2000] NSWCCA 20 R v Henry (1999) 46 NSWLR 346 R v Itamua [2000] NSWCCA 502 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 Veen v The Queen (No 2) (1988) 164 CLR 465 Category: Principal judgment Parties: Robert McCarthy (Appellant) Regina (Respondent) Representation: Counsel: C Loukas (Appellant) S Dowling (Crown) Solicitors: Frances McGowan (Appellant) S Cavanagh, Solicitor for Public Prosecutions (Crown) File Number(s): 2009/7763 Decision under appeal Before: Finnane QC, DCJ File Number(s): 2008/11/1270; 2009/11/0381; 2008/19461; 2009/7763