CM v R [2013] NSWCCA 341

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CM v R [2013] NSWCCA 341 Hearing dates: 10 December 2013 Decision date: 20 December 2013 Before: Ward JA at [1] Harrison J at [2] R A Hulme J at [3] Decision: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentences imposed in the District Court and, in lieu, impose an aggregate sentence of 8 years 9 months with a non-parole period of 6 years. The sentence is to date from 20 October 2010. The earliest day the applicant will be eligible for release on parole is 20 October 2016. Category: Principal judgment Parties: CM (Applicant) Regina (Respondent) Representation: Counsel: Mr C Bruce SC (Applicant) Ms S Dowling SC (Crown)

Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2010/348039 Decision under appeal Jurisdiction: 9101 Date of Decision: 26 October 2012 Before: Maiden SC DCJ File Number(s): 2010/348039

Judgment 1WARD JA: I agree with R A Hulme J. 2HARRISON J: I agree with R A Hulme J. 3R A HULME J: CM ("the applicant") seeks leave to appeal against sentences imposed upon him by his Honour Judge Maiden SC in the District Court at Newcastle on 26 October 2012. 4The applicant had pleaded guilty to a charge of armed robbery and had been found guilty at trial of two further armed robberies; a robbery; and an attempted robbery. 5Armed robbery is an offence contrary to s 97(1) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 20 years. Robbery is an offence against s 94 and the maximum penalty is imprisonment for 14 years. No standard non-parole period is prescribed for either offence. 6The judge imposed a total effective sentence of nine years with a minimum custodial component of seven years, dating from 20 October 2010. The applicant will become eligible for release on parole on 20 October 2017. The individual offences and sentences were as follows: 1. Robbery - Woolworths Liquor, Kotara on 5 April 2010: sentenced to three years with a non-parole period of two years dating from 20 October 2010. 2. Armed robbery - IGA store, Telarah on 6 April 2010: sentenced to four years with a non-parole period of three years dating from 20 October 2012. 3. Attempted robbery - Edgeworth Post Office, Edgeworth on 14 May 2010: sentenced to two years ten months with a non-parole period of two years dating from 20 October 2012. 4. Armed robbery - East Maitland Pharmacy on 14 May 2010: sentenced to six years with a non-parole period of four years dating from 20 October 2013. 5. Armed robbery - The General Roberts Hotel, New Lambton on 10 October 2010: sentenced to five years with a non-parole period of three years dating from 20 October 2014. 7A number of offences listed on Form 1 documents were taken into account in sentencing for the second, fourth and fifth matters. For the second and fourth matter there was a single offence taken into account in each case involving the theft of car number plates. In respect of the fifth matter the offences on the Form 1 comprised three instances of dishonestly obtaining property by deception and one further offence involving the theft of a car number plate. 8The applicant had undergone a trial in February 2012 before a different judge and a jury. He entered a plea of guilty to the offence which is the fifth matter listed above and the trial was discontinued. He underwent another trial before Maiden DCJ in June. He was acquitted of one matter but found guilty of the offences identified above as 1 - 4. 9In sentencing the applicant in respect of the fifth offence of armed robbery at The General Roberts Hotel, the judge allowed a discount of five per cent for the applicant's late plea of guilty and a further twenty per cent for assistance provided to authorities. The starting point for that sentence would have been six years eight months. 10The proposed grounds of appeal assert error in (1) only applying the discount for assistance to charge five; (2) imposing a sentence on charge five that was manifestly excessive; (3) failing to give practical effect to a finding of special circumstances in the total effective sentence and imposing an effective total non-parole period in excess of the statutory ratio; and (4) imposing a total sentence and non-parole period that was manifestly excessive.