R v Grover; Grover v R [2013] NSWCCA 149

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Grover; Grover v R [2013] NSWCCA 149 Hearing dates: 28 May 2013 Decision date: 26 June 2013 Before: Hoeben CJ at CL at [1] Fullerton J at [93] McCallum J at [94] Decision: (1) Crown appeal allowed. (2) Leave to appeal is granted to the respondent but the appeal is dismissed. (3) The sentences imposed by Puckeridge ADCJ on 14 September 2012 are quashed. (4) In lieu thereof, the respondent is sentenced as follows: (i) For the offence of supply a prohibited drug contrary to s25 of the Drug Misuse and Trafficking Act 1985 (NSW) a fixed term of imprisonment of 12 months, commencing 16 July 2011 and expiring 15 July 2012. (ii) For the offence of break enter and steal, contrary to s112(1) Crimes Act 1900 (Sequence 7 Harbord Pharmacy) imprisonment with a non-parole period of 2 years, commencing 16 October 2011 and expiring 15 October 2013, with a balance of term of 1 year, expiring 15 October 2014. (iii) For the offence of break enter and steal, contrary to s112(1) Crimes Act 1900 (Sequence 13 Merrylands) imprisonment with a non-parole period of 2 years, commencing 16 January 2012 and expiring 15 January 2014, with a balance of term of 1 year expiring 15 January 2015. (iv) For the offence of break enter and steal, contrary to s112(1) Crimes Act 1900 (Sequence 22 Mulgoa Pharmacy) imprisonment with a non-parole period of 2 years, commencing 16 April 2012 and expiring 15 April 2014 with a balance of term of 1 year, expiring 15 April 2015. (v) For the offence of break enter and steal, contrary to s112(1) Crimes Act 1900 (Sequence 25 Werrington) imprisonment with a non-parole period of 2 years, commencing 16 July 2012 and expiring 15 July 2014, with a balance of term of 1 year, expiring 15 July 2015. (vi) For the offence of aggravated break enter and steal, contrary to s112(2) Crimes Act 1900 (Sequence 2 Caringbah Chemist) imprisonment with a non-parole period of 2 years and 6 months, commencing 16 January 2013 and expiring 15 July 2015, with a balance of term of 1 year and 6 months expiring 15 January 2017. (vii) For the offence of attempt aggravated break enter and steal, contrary to s112(2) Crimes Act 1900 (Sequence 3 Miranda) imprisonment with a non-parole period of 2 years and 6 months, commencing 16 April 2013 and expiring 15 October 2015, with a balance of term of 1 year and 6 months expiring 15 April 2017. (viii) For the offence of aggravated break enter and steal, contrary to s112(2) Crimes Act 1900 (Sequence 1 Carrs Park Chemist) to which the Form 1 matters are attached, imprisonment with a non-parole period of 3 years, commencing 16 July 2013 and expiring 15 July 2016, with a balance of term of 2 years and 3 months, expiring 15 October 2018. (ix) For the offence of attempt to use false instrument, contrary to s254(b)(i) Crimes Act 1900 (Sequence 9 Claremont Meadows) imprisonment for a fixed term of 12 months commencing 16 April 2012 and expiring 15 April 2013. (x) For the offence of use false instrument, contrary to s254(b)(i) Crimes Act 1900 (Sequence 6 Plumpton) imprisonment for a fixed term of 12 months, commencing 16 April 2013 and expiring 15 April 2014. (xi) For the offence of use false instrument, contrary to s254(b)(i) Crimes Act 1900 (Sequence 27 Plumpton) imprisonment for a fixed term of 12 months, commencing 16 April 2014 and expiring 15 April 2015. Catchwords: CRIMINAL LAW - sentence appeal - Crown appeal and appeal by applicant - large number of offences with matters on a Form 1 - whether Form 1 matters properly dealt with - whether sentencing judge erred in approach to aggregate sentences - adequacy of sentences - whether proper effect given to finding of special circumstances - need to re-sentence. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Cases Cited: Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115 Attorney-General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Everett and Phillips v R [1994] HCA 49; 181 CLR 295 Porter v R [2008] NSWCCA 145 R v Harris [2007] NSWCCA 130 R v Kalache [2011] NSWCCA 210 R v Merrin [2007] NSWCCA 255 R v Nykolyn [2012] NSWCCA 219 Attorney General's Application (No 1) Under s26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327 Regina v Brett Raymond Walker [2005] NSWCCA 109 Stewart v R [2012] NSWCCA 183 Van Der Baan v R [2012] NSWCCA 5 Category: Principal judgment Parties: Regina - Appellant/Respondent Crown Mark John Grover - Respondent/Appellant Representation: Counsel: Ms S Dowling - Crown Ms N Carroll - Respondent/Appellant Solicitors: S Kavanagh, Solicitor for Public Prosecutions - Crown Philip Sim & Associates - Respondent/Applicant File Number(s): 2010/401874 2011/197525 2011/244546 Decision under appeal Date of Decision: 2002-09-14 00:00:00 Before: Puckeridge ADCJ File Number(s): 2010/401874 2011/197525 2011/244546