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District Court 2 February 2009

Anarella Faye MCKELLAR v R

[2009] NSWDC 428

Assault & violenceFraud & dishonestyTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEALS SUBSTANTIAL ASSISTANCE PLEAS OF GUILTY

Citation: Anarella Faye McKellar v R [2009] NSWDC 428
Court: District Court of New South Wales
Date: 2 February 2009
Judge(s): Cogswell SC DCJ

Background

The appellant had been sentenced by Magistrate Hamilton in the Dubbo Local Court on two occasions in late 2008 and early 2009. The offences spanned a period from August 2006 to September 2008 and included shoplifting, possession of goods in custody, a common assault committed jointly with her partner, eleven credit card fraud offences involving stolen MasterCard and Visa cards, and a breach of an existing good behaviour bond. The combined effect of the Magistrate's sentences produced an overall term of approximately 27 months imprisonment with a non-parole period of approximately 20 months.

The appellant appealed to the District Court against the severity of all five sentences. On such appeals, the District Court hears fresh evidence and re-sentences the offender afresh, rather than simply reviewing the Magistrate's approach.

The appeal raised two central contentions: that the overall sentences did not adequately reflect special circumstances justifying a longer parole period, and that the aggregate sentences were disproportionate to the overall criminality involved. The court also considered the appellant's substantial assistance to authorities and her pleas of guilty.

  • Whether the Magistrate's overall sentences appropriately reflected special circumstances that would justify a non-parole period below the standard statutory ratio.
  • Whether the aggregate sentence was disproportionate to the totality of the appellant's criminal conduct.
  • What weight should be given to the appellant's pleas of guilty, her substantial assistance to authorities, and her demonstrated efforts at rehabilitation.

Decision

Cogswell SC DCJ re-sentenced the appellant, finding that the sentences imposed by the Magistrate did not adequately account for her rehabilitation efforts and special circumstances. The court accepted that the appellant had made a genuine and serious commitment to addressing the factors that had driven her offending, including her relationship with her co-offender partner.

The court reduced the overall period of custody significantly. The re-sentencing took the appellant's earliest date in custody as the commencement date, back-dated to 28 September 2008. The total sentence was restructured to twelve months imprisonment, producing an effective non-parole period of seven months expiring on 28 April 2009. This was a marked reduction from the approximately 20-month non-parole period the Magistrate had imposed.

In addition to the custodial term, the court imposed a three-year good behaviour bond commencing on the date of the appeal decision, directed at supporting the appellant's continued rehabilitation. For the common assault, the court substituted a twelve-month good behaviour bond rather than a term of imprisonment. The court directed that supervision by the Probation and Parole Service include advice on drug and alcohol rehabilitation and family and domestic violence, and ordered that the appellant follow that advice to the extent it was reasonable.

Orders Made

  • The appellant to be released on parole on 28 April 2009 pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999.
  • No conditions were fixed on parole, given the concurrent three-year good behaviour bond.
  • A three-year good behaviour bond imposed from the date of the hearing.
  • A twelve-month good behaviour bond imposed for the common assault.

Key Takeaways

  • The District Court re-sentenced the appellant substantially afresh, reducing total imprisonment from approximately 27 months to 12 months, and the non-parole period from approximately 20 months to 7 months, in recognition of special circumstances and rehabilitation.
  • Where an offender demonstrates genuine and sustained efforts at rehabilitation, those efforts can carry significant weight in structuring sentences on appeal, particularly in adjusting the balance between the parole and non-parole periods.
  • Substantial assistance to authorities and pleas of guilty were treated as relevant mitigating factors in the overall sentencing exercise.
  • On a severity appeal from the Local Court, the District Court conducts a fresh sentencing exercise rather than reviewing the Magistrate's discretion for error, meaning new evidence about rehabilitation and personal circumstances can be fully considered.
  • A good behaviour bond with Probation and Parole supervision may be preferred over additional imprisonment where the court identifies rehabilitation as a realistic and primary sentencing objective.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 9, 117, 178BA(1)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 50

Cases: No cases were cited in the portions of the judgment provided.