McCabe v R [2016] NSWCCA 7

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McCabe v R [2016] NSWCCA 7 Hearing dates: 4 November 2015 Date of orders: 10 February 2016 Decision date: 10 February 2016 Before: Meagher JA at [1] Rothman J at [2] Bellew J at [3] Decision: Leave to appeal is granted.

The appeal is allowed.

The sentence imposed upon the applicant in the District Court is quashed.

In lieu thereof the applicant is sentenced to a non-parole period of 1 year and 10 months imprisonment commencing on 20 November 2014 and expiring on 19 September 2016 with a balance of term of 1 year and 6 months commencing on 20 September 2016 expiring on 19 March 2018.

The total sentence is one of 3 years and 4 months imprisonment. Catchwords: CRIMINAL LAW – Appeal – Sentence – Break Enter and Steal – Where sentencing judge delivered ex tempore remarks on sentence and concluded that the offending was slightly below the mid-range of objective seriousness – Where sentencing judge stated that he reached that conclusion by taking into account the applicant's past criminal history – Where sentencing remarks had been revised – No basis for concluding that the sentencing judge had intended to express anything other than what he had stated – Where no suggestion of a slip – Error established

CRIMINAL LAW – Sentence – Break Enter and Steal – Where actions of the applicant were typical of this kind of offending – Where applicant had a long history of similar offending – Previous efforts at rehabilitation not successful – Evidence of the applicant's mental illness – Level of moral culpability reduced as a result – Where mental illness rendered the applicant an inappropriate vehicle for general deterrence – Some prospects of rehabilitation notwithstanding the applicant's history of similar offending – Applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure Act) 1999 Cases Cited: Baumer v The Queen [1988] HCA 67;(1988) 166 CLR 51 DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Gommesen v R [2012] NSWCCA 226; 62 MVR 196 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Category: Principal judgment Parties: Shane McCabe (Applicant) Regina (Respondent) Representation: Counsel: A Evers (Applicant) N Adams SC (Respondent)