Citation: McDonald v Regina [2011] NSWCCA 2
Court: Court of Criminal Appeal, NSW
Date: 31 January 2011
Judges: Beazley JA, Hulme J, Harrison J
Background
The applicant pleaded guilty to four offences. The first was taking and driving a conveyance at Merrylands in September 2007. The remaining three offences occurred in November 2007 and centred on a ram raid of an ATM, involving aggravated break and enter while committing a serious indictable offence, knowingly driving a stolen vehicle, and knowingly being carried in a stolen vehicle.
The sentencing judge imposed a total effective sentence of six years imprisonment with a non-parole period of four years and four months, backdated to when the applicant entered custody in November 2007. A 25 per cent discount was applied to the principal charge to reflect the early guilty plea.
The applicant sought leave to appeal against the sentence, requiring the Court to first grant an extension of time. He advanced seven grounds of appeal, with the central complaint being that the sentencing judge failed to give appropriate weight to evidence of his rehabilitation prospects.
Legal Issues
- Whether the sentencing judge gave adequate weight to rehabilitation evidence, including testimony from the applicant, his father, his girlfriend, a potential employer, and a psychologist
- Whether the sentencing judge improperly prejudged the question of rehabilitation through dismissive questioning at the sentence hearing
- Whether the overall sentence was excessive having regard to the circumstances of the offending
Decision
The Court rejected the submission that the sentencing judge prejudged the rehabilitation question. Beazley JA found the judge's questioning during the sentence hearing reflected genuine and legitimate concern that the rehabilitation evidence was formulaic, lacking in concrete or distinctive detail. There was nothing inappropriate in the judge pressing witnesses on that concern.
The Court also acknowledged the practical difficulty the applicant faced: having spent a significant period in custody on remand, he had little opportunity to undertake rehabilitation courses or otherwise demonstrate meaningful progress in a concrete way. Nonetheless, the Court found this did not render the sentencing approach erroneous.
Even if some flaw in approach could theoretically have been argued, Beazley JA concluded the sentence was entirely appropriate given the seriousness of the offending. The judge below had identified planning and premeditation, substantial property damage, multiple stolen vehicles, a joint criminal enterprise involving two others, no restitution, and the fact that the applicant was on conditional liberty at the time of the offences.
Hulme J agreed the appeal should be dismissed but added an observation: the sentencing judge had made all three November 2007 sentences entirely concurrent, despite three separate offences at different times against different victims. In Hulme J's view there was no justification for full concurrency. Had he been minded to interfere with the robbery sentence, he would have imposed some degree of accumulation, with the result that the applicant may have been no better off overall.
Orders Made
- Extension of time granted
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge who questions the quality of rehabilitation evidence is not thereby prejudging the issue, provided the questioning is directed at legitimate concerns about the evidence's cogency.
- Where an applicant has spent the period between offending and sentencing on remand, the court recognised this limits the applicant's ability to demonstrate rehabilitation through completed programmes, though it does not excuse the absence of persuasive evidence.
- The seriousness of offending, including planning, joint enterprise, significant property damage, and commission while on conditional liberty, can warrant a substantial sentence even where rehabilitation evidence is put forward.
- Hulme J's separate remarks indicate that entirely concurrent sentences across multiple offences with different victims may lack justification, and accumulation may be appropriate in such circumstances, even if the total sentence outcome does not ultimately change.
- No lesser sentence than the six-year term with a four-year, four-month non-parole period was found to be warranted in law on the facts of this case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter committing a serious indictable offence; maximum 20 years, standard non-parole period of 5 years)
- Crimes Act 1900 (NSW), s 154A(1)(a) (taking and driving a conveyance; maximum 5 years)
- Crimes Act 1900 (NSW), s 154A(1)(b) (knowingly driving or being carried in a stolen conveyance; maximum 5 years)
Cases cited: No cases were cited in the judgment text provided.