Fitzgerald v R [2018] NSWCCA 170

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fitzgerald v R [2018] NSWCCA 170 Hearing dates: 25 July 2018 Date of orders: 06 August 2018 Decision date: 06 August 2018 Before: Hoeben CJ at CL at [1] Price J at [2] Davies J at [3] Decision: (1) Leave to appeal granted.

(2) Appeal dismissed.

(3) Time not to count except for 49 days.

(4) The sentence will now expire on 16 May 2020 and the non-parole period will expire on 16 June 2019. Catchwords: SENTENCING – appeal against sentence – aggravated break and enter and commit serious indictable offence – whether sentencing judge failed to consider alternatives to full-time custody – whether sentencing judge decided how sentence was to be served before fixing the term of the sentence – failure to approach matter in two stages not indicative of error where alternatives to full-time custody were rejected after proper consideration

SENTENCING – appeal against sentence – whether head sentence for offence to which Form 1 was attached was disproportionate to fixed term sentences for other offences charged – no error where sentences were wholly concurrent and where a fixed term should be regarded as the non-parole period – whether the sentencing judge failed to award a discount for pleading guilty in respect of two of the offences – no error where sentencing judge considered the offences together when discounting the plea

SENTENCING – appeal against sentence – whether sentencing judge erred in assessing objective criminality by finding that the offences involved a 'significant degree of planning' – no error in circumstances where specific goods were stolen to fulfil work orders received by the applicant's business – sentence imposed not manifestly excessive – seriousness of offending balanced against strong subjective case – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) s112 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 45 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Douar v R [2005] NSWCCA 455 Laycock v R [2017] NSWCCA 47 Mcintosh v R [2015] NSWCCA 184 Moore v R [2016] NSWCCA 185 Parente v R [2017] NSWCCA 284 Paul Campbell v R [2018] NSWCCA 87 R v Dunn [2004] NSWCCA 346 R v Zamagias [2002] NSWCCA 17 Category: Principal judgment Parties: Karina Lorraine Fitzgerald (Applicant) Crown (Respondent) Representation: Counsel: P Lange, C Parkin & E Olivier (Applicant) F Veltro (Respondent)