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Court of Criminal Appeal 24 November 1999

Regina v McDermott @ Maxwell

[1999] NSWCCA 379

DrugsTheft & property
CRIMINAL LAW

Citation: Regina v McDermott @ Maxwell [1999] NSWCCA 379
Court: New South Wales Court of Criminal Appeal
Date: 24 November 1999
Judge(s): Sperling J; Dunford J

Background

The applicant pleaded guilty in the District Court to receiving stolen motor vehicle parts valued at approximately $20,000 before being broken up, having paid around $2,500 for them and admitting knowledge they were stolen. He also asked the court to take into account related drug supply and possession offences. Before sentencing in 1995, he absconded to the United States, where he was convicted of trafficking a small quantity of cocaine (12 grams) and served a prison term in South Carolina.

Following his release from custody in the United States, the applicant was held in immigration detention and voluntarily notified Australian authorities of his return. He was sentenced by Ford DCJ in the District Court on 19 July 1999. The judge imposed a sentence of one year and four months (minimum term of twelve months, additional term of four months), backdated to the commencement of his overseas detention period, meaning the applicant would have served approximately three and a half years continuously in custody by the time he became eligible for parole.

The applicant sought leave to appeal against sentence, arguing that the sentencing judge had failed to apply the totality principle, erred in not finding special circumstances, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge erred by failing to apply the totality principle when imposing a cumulative sentence alongside the applicant's overseas imprisonment for cocaine trafficking
  • Whether the sentencing judge erred by not finding special circumstances under s 5(2) of the Sentencing Act 1989, which can justify adjusting the ratio between minimum and additional terms
  • Whether the sentence was manifestly excessive in all the circumstances
  • Whether the Court of Criminal Appeal has jurisdiction to intervene and re-sentence where a lesser sentence is not warranted, even if error exists in the sentencing judge's reasons

Decision

The Court accepted that the totality principle applied and was a relevant consideration, even though the overseas cocaine offence was factually separate from the receiving offence. Sperling J also acknowledged that special circumstances arising from the cumulative nature of the sentences could justify, though not mandate, a departure from the standard statutory relationship between minimum and additional terms. The Court left open whether the sentencing judge had actually overlooked these matters, observing that silence on a point does not necessarily demonstrate it was ignored, particularly for an experienced judge.

The critical question was not whether error existed in the judge's reasons, but whether a lesser sentence was warranted. Sperling J concluded that, having considered all relevant factors including totality, accumulation, the objective seriousness of the offences, and the applicant's positive rehabilitation evidence, he would not have imposed a lesser sentence even if the original sentence were set aside for error.

Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal has jurisdiction to interfere with a sentence only where a different sentence is warranted. Where no lesser sentence is warranted, the Court is bound to dismiss the appeal regardless of whether there was error in the sentencing judge's reasoning. Accordingly, leave was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal has no jurisdiction to re-sentence an applicant unless a different sentence (whether more or less severe) is actually warranted. The existence of error in the sentencing judge's reasons is not, on its own, a sufficient basis to intervene.
  • In dismissing the appeal, the Court confirmed that the totality principle is not confined to offences arising from the same criminal activity. It applies wherever an aggregate of cumulative sentences must reflect an appropriate penalty for the overall criminality.
  • Where cumulative sentences are imposed, special circumstances under s 5(2) of the Sentencing Act 1989 may arise, potentially justifying an adjusted ratio between minimum and additional terms. However, such an adjustment is not automatically required.
  • Silence in a sentencing judge's reasons about the totality principle or special circumstances does not necessarily establish that those matters were overlooked, particularly where the judge is experienced.
  • Receiving stolen goods was treated as a serious offence carrying a maximum of ten years, reflecting the courts' recognition that trafficking in stolen property materially contributes to the incidence of theft.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 188 (receiving stolen goods; maximum ten years penal servitude)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances)
- Criminal Appeal Act 1912 (NSW), ss 5 and 6

Cases:
- Astill (No 2) (1992) 64 A Crim R 289
- Bo Too (NSW CCA, 16 July 1992, unreported)
- Campbell (NSW CCA, 20 October 1999, unreported)
- Close (1992) 31 NSWLR 743
- Cocking [1999] NSWCCA 311
- Daly (NSW CCA, 14 July 1997, unreported)
- Holder (1993) 3 NSWLR 245
- Leon (NSW CCA, 30 November 1994, unreported)
- Oastler (NSW CCA, 7 October 1992, unreported)
- Phillips (NSW CCA, 11 December 1991, unreported)