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Court of Criminal Appeal 13 February 2012

McGoldrick v Regina

[2012] NSWCCA 7

Theft & property
CRIMINAL LAW

Citation: McGoldrick v Regina [2012] NSWCCA 7
Court: Court of Criminal Appeal, NSW
Date: 13 February 2012
Judges: Bathurst CJ, Simpson J, Adamson J

Background

The applicant sought leave to appeal against sentences imposed by Judge Sides QC in the District Court at Parramatta on 23 March 2010. He had pleaded guilty to three counts of break, enter and steal under s 112(1) of the Crimes Act 1900 (NSW), with additional offences taken into account on a Form 1. The offences involved breaking into residential units in Western Sydney between 2006 and 2008, with the applicant identified through DNA from blood left at scenes.

The applicant had an extensive criminal history, including 19 prior convictions for break, enter and steal. Two of the three index offences were committed while he was on parole, and the 2006 offence was committed while he was on bail. His drug addiction was a central feature of the sentencing proceedings, with a clinical psychologist's report tendered and the applicant giving evidence about his rehabilitation efforts.

The sentencing judge imposed a total effective sentence of five years with a non-parole period of three years and nine months. The judge also recommended the applicant be considered for a compulsory drug treatment program through the Drug Court. That recommendation was ultimately not followed, as the Drug Court found him ineligible.

  • Whether the applicant received adequate legal representation at the sentencing hearing
  • Whether the sentences imposed were manifestly excessive, having regard to the applicant's subjective circumstances including his drug addiction and rehabilitation efforts
  • Whether the sentencing judge erred in not giving greater weight to mitigating factors
  • Whether the Drug Court's refusal to accept the sentencing judge's recommendation for a compulsory drug treatment program constituted a reviewable error on appeal

Decision

The Court of Criminal Appeal, in a judgment delivered by Adamson J (with Bathurst CJ and Simpson J agreeing), refused leave to appeal on all grounds. The applicant had not demonstrated any error in the sentencing judge's reasoning, and the individual and total sentences were not manifestly excessive.

On the question of representation, the Court found no basis for the submission that the applicant had been inadequately represented at sentencing. A comprehensive psychological report had been tendered and the applicant had given evidence, indicating the sentencing proceedings were properly conducted on his behalf.

Regarding the Drug Court referral, the Court noted that the sentencing judge had recommended the applicant be referred for consideration under the compulsory drug treatment program. However, Judge Barnett of the Drug Court found him not eligible for the program. The Court confirmed this outcome was consistent with the legislative requirements: under s 5A(2)(c) of the Drug Court Act 1998 (NSW), a person convicted at any time of an offence involving the use of a firearm is precluded from eligibility. The applicant's 2003 Queensland conviction for attempted robbery whilst armed with a dangerous weapon disqualified him. The Drug Court's decision therefore disclosed no error.

Although the Court noted the applicant's personal circumstances with some sympathy, including his desire to be a better father and his inability to attend family funerals while in custody, these matters did not alter the sentencing outcome. The Court nonetheless recommended, outside its jurisdiction to order, that the applicant be permitted to participate in Drug Court programs if possible, with a view to supporting rehabilitation and reducing recidivism.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Under s 5A(2)(c) of the Drug Court Act 1998 (NSW), a prior conviction involving the use of a firearm at any time permanently disqualifies an offender from eligibility for a compulsory drug treatment order, regardless of a sentencing judge's recommendation to the contrary.
  • A sentencing judge's recommendation that an offender be referred to the Drug Court does not bind the Drug Court; eligibility is determined by the Drug Court itself according to the statutory criteria.
  • Where offences are committed in breach of both bail and parole, and the offender has an extensive history of similar offending, the sentencing court may properly find prospects of rehabilitation to be poor, even where genuine rehabilitation efforts are evident at the time of sentence.
  • No error arises from the accumulation of sentences for multiple break, enter and steal offences committed across different periods, provided the sentencing judge correctly applies totality principles and adjusts non-parole periods for special circumstances.
  • The Court of Criminal Appeal may make non-binding recommendations about prison placement or program access where such matters fall outside its jurisdiction but are considered relevant to an offender's rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 44(2)
- Criminal Appeal Act 1912 (NSW), s 26
- Drug Court Act 1998 (NSW), ss 5A, 18B

Cases:
- R v Harris (2007) 171 A Crim R 267
- R v McNaughton (2006) 66 NSWLR 566
- R v McVittie [2002] NSWCCA 344
- R v Ponfield & Others (1999) 48 NSWLR 327 (guideline judgment on break, enter and steal offences)
- Veen v The Queen (No 2) (1988) 164 CLR 465