McMenemy v R [2009] NSWCCA 50 | Case summary

27 February 2009 Anthony McMenemy v R Judgment 1 GROVE J: I will ask Price J to deliver the first judgment. 2 PRICE J: On 28 February 2008 the applicant in the District Court adhered to the pleas of guilty which he had entered in the Local Court to six charges which had been commenced by Court Attendance Notices. 3 The first charge alleged a break, enter and steal between 2 April 2007 and 3 April 2007 contrary to s 112(1) of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment. The second charge alleged a demand property with menaces with intent to steal, whilst in company on 8 April 2007 contrary to s 99(2) of the Crimes Act. This offence also carries a maximum penalty of 14 years imprisonment. The third charge alleged a robbery in company on 8 April 2007 contrary to s 97(1) of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment. The fourth charge alleged malicious damage to property between 2 April 2007 and 3 April 2007 contrary to s 195(1) of the Crimes Act. The maximum penalty for this offence is 5 years imprisonment. The fifth charge alleged a demand property with menaces with intent to steal on 14 May 2007 contrary to s 99(1) of the Crimes Act. The maximum penalty for this offence is 10 years imprisonment. The sixth charge alleged a robbery on 14 April 2007 contrary to s 94 of the Crimes Act. The maximum penalty for this offence is 14 years imprisonment. 4 The applicant asked the Judge to take into account on sentence two matters on a Form 1, namely a receiving on 6 May 2007 and a larceny on 14 May 2007. 5 The applicant was sentenced by the Judge on 13 March 2008. In respect of charges 2 and 5, he was sentenced to fixed terms of 2 years imprisonment to date from 30 May 2007 and to expire on 29 May 2009. In respect of charges 4 and 6, fixed terms of 18 months imprisonment to date from 30 May 2007 and to expire on 29 November 2008 were imposed. A fixed term of imprisonment of 2 years to date from 30 May 2009 and to expire on 29 May 2011 was imposed for charge 1. For charge 3, the applicant was sentenced to imprisonment with a non-parole period of 3 years to date from 30 November 2009 and to expire on 29 November 2012 with a balance of term of 2 years 6 months to expire on 29 May 2015. 6 The total effective sentence was 8 years commencing on 30 May 2007 and expiring on 29 May 2015 with a non-parole period of 5 years 6 months commencing on 30 May 2007 and expiring on 29 November 2012, the date upon which the applicant is eligible for release to parole. 7 The two offences on the Form 1 were taken into account by the Judge in the sentences imposed for the third charge. 8 The facts of the offences were stated by the Judge in his remarks on sentence in accordance with the Crown brief which had been tendered without objection. The facts have been conveniently summarised in chronological order in the Crown's written submissions as follows: Charge 1: Between 5pm on 2 April 2007 and 7am on 3 April 2007 the applicant broke into a multi-storey residential unit complex in Johnson Street Mascot, which was undergoing renovation and refurbishment. Entry was gained to all nine units in the complex and a quantity of items, including mainly whitegoods and furniture, was stolen. The goods were valued at a total of $8,282. Charge 4: During the break and enter a number of whitegoods and door locks were damaged. The replacement cost of the damaged items was $10,460 and the labour costs involved in repairing damage occasioned to the premises was $5,616. Charge 2: At about 9pm on 8 April 2007 the applicant approached two males who were waiting at a bus stop on Botany Road at Mascot. He engaged the males in conversation and asked them if they would fight if someone tried to take their wallets. The applicant made a phone call and was joined by another male. The applicant then demanded the victims' wallets and the victims ran from the scene. Charge 3: At about 9.30pm on 8 April 2007 the applicant and another male approached the victim, a 16 year old male, when he was standing in a phone box in Mascot. The applicant said to the victim, "We don't want to fight you we just want your money" and the victim replied, "I don't have any". The applicant searched the victim and robbed him of his mobile phone which was in his pocket. Charge 6: At about 9.40pm on 14 April 2007 the victim, a pizza delivery driver, delivered food in Macintosh Street, Mascot. As the victim was returning to his vehicle he was approached by the applicant, who said, "Show me the money". The victim said, "I don't have any money" and the applicant said, "You just made a delivery". The victim tried unsuccessfully to stop a passing motorist, at which time the applicant grabbed a pencil case from him which was used to carry money. The applicant took $60 from the pencil case and walked away. Charge 5: At about 1.03pm on 14 May 2007 the applicant entered the BP service station on Botany Road, Mascot. He approached the two attendants and asked to be given a packet of cigarettes on credit. The request was declined and the applicant walked to the fridge where he removed a bottle of coke and drank from it (the theft of the soft drink constituted the offence of larceny on the Form 1). The applicant became angry when he was refused credit and he said to the attendants, "If I come back with a mask what will you do?" One of the attendants replied, "That is not the proper way". The applicant said, "If I come back with a mask you will have to give me money. I can shoot you". The applicant was very aggressive and was pacing back and forth in an intimidating manner, causing both attendants to fear for their safety. They believed that the applicant was threatening to return to the premises and commit an armed robbery. In an attempt to diffuse the situation one of the attendants gave the offender two of his own cigarettes. The applicant left the store and the police were called. The applicant was arrested approximately 40 minutes later when he was crossing the road directly outside the service station. At the time of arrest the applicant was wearing a pair of almost new Nike running shoes which were later identified as the proceeds of a demand money with menaces incident that occurred in King Street, Mascot on 6 May 2007 (the possession of the shoes constituted the offence of receiving on the Form 1). 9 The applicant was born on 15 January 1986 and was 21 years old at the time of the offending. Evidence of his subjective circumstances was put before the Judge by way of a report of Mr Tim Watson-Munro, a psychologist, a pre-sentence report dated 13 February 2008 and the oral evidence of the applicant himself. 10 When the applicant was born his mother was 14 years old. Because of her drug use, he was removed from her care and placed in a succession of foster homes. He was re-united with her at the age of twelve after she had established that she had ceased using drugs. He told the psychologist that his time in foster care was highly traumatic in the context of his strong desire to be with his mother whom he viewed "like an older sister". He described a range of behavioural problems during his formative years which caused him to be placed in a number of special behaviour schools. Having attained year 9 standard, he left school at the age of 16 years and then worked night shift in a bakery for 5 years. He also worked briefly as a film extra and as a general hand in a hamburger store. During a period of unemployment prior to his arrest, he was in receipt of unemployment benefits which enabled him to develop his talent as a singer/songwriter. 11 The applicant has a long standing problem with both alcohol and illicit drugs. He told the psychologist that he had started drinking alcohol at about the age of 13 and had a protracted history of alcoholic blackouts. At about the age of 16, he commenced using crystal methylamphetamines (Ice) which he continued to use up until the time of arrest. He had also used cannabis, cocaine and ecstacy. The applicant told Mr Hannagan, the author of the pre-sentence report, that he had committed the offences to support a burgeoning drug habit which was out of control. 12 The psychologist noted a complex developmental history and attendant to this long standing issues with drug abuse. He opined that the applicant had been severely traumatised by placement in foster care at a very young age and there was no doubt that this accounted for his continuing insecurities, depression and anxiety as an adult. The psychologist observed that the applicant had been drug-free whilst in custody and appeared to be more focussed upon his rehabilitation and insightful to the dynamics behind his problems. 13 Mr Hannagan wrote that the applicant had been attending AA meetings and had received counselling whilst in custody. He reported that people who knew the applicant well had been impressed at the way the applicant had taken constructive advantage of his time in custody resulting in a marked improvement in his attitudes. Mr Hannagan expressed the opinion that the applicant's prognosis for refraining from re-offending was optimistic if his present attitudes persisted. 14 During his testimony before the Judge, the applicant expressed his shame for what he had done and his deep sorrow for having put people in fear by his actions. He said it would not happen again. 15 The Judge accepted that the applicant was remorseful. His Honour sympathetically considered the applicant's subjective circumstances and found that the attempts at rehabilitation, the need for continuing rehabilitation together with his relative youth and first time in custody were special circumstances enabling him to vary the statutory ratio. For the pleas of guilty, his Honour allowed a utilitarian discount of 25 per cent. 16 The applicant's prior criminal history, his Honour remarked, included an offence of break and enter in 2002 and an offence of destroy and damage property on 8 November 2005 for which he was placed on a s 9 bond to be of good behaviour for 18 months. His Honour observed that the applicant was in breach of this bond when the first four offences were committed. The break and enter offence to which the Judge referred was dealt with in the Children's Court. 17 The first ground of appeal complains that the sentence imposed for the offence of robbery in company (charge 3) is manifestly excessive. The applicant pointed out that the starting point of the sentence was approximately 7 years 4 months before an allowance for the utilitarian discount for the plea of 25 per cent was made. 18 It was submitted that the sentence should have been towards the lower end of the sentencing guideline promulgated in R v Henry (1999) 46 NSWLR 346 which identified a common category of case having the following features: "(i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case." 19 For an offender with those characteristics, the guideline sentence promulgated was a head sentence of between four and five years. This range takes into account a 10 per cent discount for the plea. The guideline judgment which applies to offences of robbery in company as well as to offences of armed robbery is intended to be a relevant guidepost in the exercise of sentencing discretion and as pointed out by Spigelman CJ in Legge v Regina [2007] NSWCCA 244 at [59] was "not a tramline". 20 The factors identified in (iii), (iv), (v) and (vi) apply to the present case. The victim was in a vulnerable position being alone at night in a telephone box. Violence was threatened verbally and by the presence of the applicant and his co-offender. A mobile phone was taken. Whilst the applicant is a young offender with a limited criminal history, an aggravating factor was the commission of the offence whilst on conditional liberty.

21 On the other hand, the reduction for the guilty plea was 25 per cent. 22 His Honour was also asked to take into account two matters on the Form 1. They were, however, minor matters of dishonesty involving the theft of a bottle of coca-cola and the receiving of a stolen pair of running shoes. Form 1 offences of such a nature could not have significantly impacted upon the sentence to be imposed. 23 No reference was made by the Judge in his sentencing remarks to the guideline identified in Henry. He imposed a head sentence of 5 years 6 months after making allowance of 25 per cent for the plea. The sentence was above the high end of the range specified in Henry and could not in my respectful opinion be justified by the factor of aggravation and the Form 1 offences. There was also to be considered the applicant's remorse and the positive steps taken by him towards rehabilitation. 24 In my respectful opinion, the sentence imposed for charge 3 was outside the legitimate range of sentencing discretion and I find the first ground of appeal established. 25 The remaining ground of appeal is that the total effective sentence is manifestly excessive. The particular complaint is that the sentences imposed for charges 1 and 3 are cumulative upon the sentences for charges 2 and 5. 26 For charge 2 (demand property in company) and charge 5 (demand property with menaces) concurrent fixed terms of 2 years imprisonment were imposed each to date from 30 May 2007. For charge 4 (malicious damage to property) and charge 6 (robbery) concurrent fixed terms of 18 months imprisonment were imposed which were also to date from 30 May 2007. The sentences for charges 4 and 6 were wholly subsumed within the sentences for charges 2 and 5. Each of these offences involved separate criminal acts and separate victims and his Honour's approach to the structure of these sentences could be regarded as generous to the applicant. A measure of partial accumulation might have been called for. 27 For charge 1 (the offence of break, enter and steal) the fixed term of 2 years imprisonment was wholly accumulated on the sentences for charges 2 and 5. The sentence for charge 3 (robbery in company) was partially accumulated upon the sentence for charge 1 commencing as it did 6 months after the commencement of the sentence for the first charge. 28 Questions of concurrence or accumulation are a discretionary matter for the sentencing Judge but that "discretion is generally circumscribed by a proper application of the principle of totality": R v MMK (2006) 164 A Crim R 481 at [13]. 29 It is clear from what was said by the Judge that he considered the principle of totality. His Honour considered that he was obliged to fix an appropriate sentence for each offence and then to consider questions of concurrence or accumulation as well as the question of totality: Pearce v The Queen (1998) 194 CLR 610. 30 Charges 1 and 3 each involved separate criminal acts of a serious kind. Concurrent sentences had been imposed for the other charges. It was, in my opinion, open to the Judge to determine that the sentence for charge 1 should be wholly accumulated on the sentences for charges 2 and 5 and the sentence for charge 3 should be partially accumulated on the sentence for charge 1. I do not detect error in the structure of the sentences. As a consequence of the length of the sentence for charge 3, I am, however, satisfied that the total effective sentence was manifestly excessive. Re-sentence 31 In my respectful opinion some other sentence is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act 1912. The sentence for charge 3 should be reduced from 5 years 6 months to 4 years 6 months. The non-parole period for that sentence should be reduced from 3 years to 2 years. 32 For the reasons given by his Honour I maintain the finding of special circumstances. 33 The total effective sentence that I propose will be 7 years commencing on 30 May 2007 and expiring on 29 May 2014 with a non-parole period of 4 years 6 months commencing on 30 May 2007 and expiring on 29 November 2011. 34 Accordingly, I propose the following orders:

McMenemy v R

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