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Court of Criminal Appeal 2 August 2006

McNally v Regina

[2006] NSWCCA 248

Theft & property
SENTENCING NO OTHER SENTENCE WARRANTED IN LAW SENTENCING COMMENCEMENT DATE OF SENTENCE WHERE DELAY IN SENTENCING PROCESS PRINCIPLE OF TOTALITY

Citation: McNally v Regina [2006] NSWCCA 248
Court: NSW Court of Criminal Appeal
Date: 2 August 2006
Judge(s): Beazley JA; Hulme J; Hislop J

Background

The appellant had been convicted of five break, enter and steal offences committed between October and December 2004, while already on bail for an earlier offence of the same kind. He was sentenced by Marien DCJ in the District Court on 21 October 2005. The five sentences were structured with partial concurrency and partial accumulation, producing a total term of three years and six months with a non-parole period of two years and three months.

The appellant appeared in person before the Court of Criminal Appeal. He raised two distinct complaints about the way his sentences had been structured at first instance.

  • Whether the sentencing judge erred by failing to give adequate weight to the appellant's protective custody status, given that such custody imposes more onerous conditions than ordinary imprisonment
  • Whether the commencement date of the sentence for the fifth offence should have been backdated to the date of arrest or the date of charge, rather than a date approximately fourteen months after charge, particularly where the appellant had made early admissions to police

Decision

On the protective custody ground, the Court acknowledged that the conditions in which a prisoner serves a sentence are a relevant sentencing consideration. However, the sentencing judge had correctly declined to make assumptions about future custodial circumstances where no evidence was available at the time of sentencing. The Court accepted that the ongoing protective custody conditions were a matter it could take into account on appeal, but concluded that even with that additional information, no different sentence was warranted in law.

On the commencement date ground, the Court found no error in the judge's approach. The sentencing task required the judge to impose appropriate punishment for each offence individually and for all five offences in total. The fact that the appellant had made admissions about one offence well before he was charged did not, of itself, justify backdating the commencement of that sentence to the date of arrest or charge. The Court noted the commencement dates reflected a structured approach to totality rather than any failure to account for the chronology of events.

The Court emphasised that the sentences were, if anything, extraordinarily lenient. Hulme J observed that a total period of three years and six months for five offences carrying a maximum of fourteen years each, against a background of approximately ten prior convictions for the same offence, was notably low. The Court granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court cannot make assumptions about future custodial circumstances, such as whether a prisoner will remain in protective custody, where no evidence of those future circumstances is before the court at the time of sentencing.
  • An appellate court can take into account the conditions in which a sentence is actually being served when reviewing the sentence, but this does not automatically lead to a reduced sentence if no different outcome is otherwise warranted in law.
  • Where a delay in the charging process means a sentence commences well after the date of arrest or disclosure, that delay does not of itself entitle an offender to have the sentence backdated to the earlier date.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that the principle of totality requires a sentencing judge to consider both the appropriateness of individual sentences and the overall punishment across all offences, without mechanically adjusting commencement dates by reference to procedural history.
  • No error was established in the original sentencing, and the Court noted the sentences imposed were, given the offender's history and the statutory maximum, at the lower end of the available range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 112(1) (break, enter and steal: maximum penalty of 14 years imprisonment)

Cases cited: No specific cases were cited in the judgment.