McNamara v Edwards [2009] ACTSC 91

1. Robert Andrew McNamara has appealed against sentences imposed in the Magistrates Court on 11 March 2009. The sentences were as follows:

(a) For aiding and abetting a burglary committed on 26 November 2008, which I shall refer to as the new burglary, 18 months imprisonment reduced from 20 months because of Mr McNamara's plea of guilty.

(b) For a burglary committed in April 2007 - nine months imprisonment. A sentence of nine months imprisonment was originally imposed on 11 April 2008, but suspended subject to a good behaviour order, which was breached by the November burglary, being the new burglary.

(c) For a burglary committed in December 2005 - seven months imprisonment. A sentence of seven months imprisonment was originally imposed on 27 May 2008, but suspended subject to a good behaviour order, which was breached by the new burglary.

2. The seven and nine months sentences were to be served concurrently with each other, but consecutively on the 18 months sentence. This made a head sentence of 27 months, and the sentencing magistrate set a non-parole period of 18 months. The sentence was backdated to 4 February 2009 to take account of time already spent in custody. Mr McNamara has accordingly served nearly six months of his sentence.

3. Mr McNamara was self-represented at the appeal. His notice of appeal specified the ground of appeal as the severity of the sentence, which he says in the notice of appeal "appears excessive to my crime". Mr McNamara identifies a reduced sentence as the order sought. In the absence of reference to any specific error alleged on the part of the sentencing magistrate, I have interpreted this ground of appeal as a claim that the sentence is manifestly excessive.

4. At the hearing, Mr McNamara identified two matters that I consider might be relevant to an assessment of whether his penalty was manifestly excessive, namely, that he had never been imprisoned before, and that he was currently in protection in prison, because of the assistance he had provided to the authorities in relation to Mr McGuiness, the person accused of the new burglary, that is, the burglary which Mr McNamara had pleaded guilty to aiding and abetting.

5. Mr McNamara's notice of appeal identified an intention to call further evidence, and he indicated at the hearing that he had proposed to call evidence from his partner, who is the mother of his two young children, including a baby born only a month ago. He further indicated that his partner was not available to give evidence at this stage, because Mr McNamara had been unaware that the appeal would be heard today. Mr McNamara's family responsibilities were canvassed extensively before the sentencing magistrate, who found that there was nothing remarkable in those circumstances. I cannot see, on the basis of Mr McNamara's submissions, that there is anything particular about his circumstances that would be relevant to the appeal, and accordingly, I propose to finalise the appeal today, rather than adjourning until evidence is available.

6. In other judgments, I have expressed the view that a relatively short term of imprisonment is often appropriate for a relatively minor example of an offence with a relatively low maximum penalty, committed by an offender who has not previously served a sentence in fulltime custody. The most recent judgment is Drought v Driesen (ACTSC 46, 7 May 2009). In that judgment, I quoted from my comments in Moutrage v Haines 2008, (ACTSC 36, 8 May 2008), as follows at paragraph 40:

The fact that an offender has not previously been to prison cannot be used to keep him out of prison forever if he continues to re-offend. However, that fact may appropriately lead a court to decide that the first custodial sentence imposed should be a relatively short custodial sentence, at least where the offences concerned are relatively less serious. This approach may be founded on a hope that a short custodial sentence might be sufficient to persuade the offender to change his ways, without exposing him for too long to those aspects of prison life that could have a negative rather than a positive effect on his long-term rehabilitation.

7. This is a slightly different case, in that it concerns offences the maximum penalty for which is quite substantial, specifically 14 years imprisonment. In those circumstances, a sentence of 18 months imprisonment for one offence, or the total sentence of 27 months for three offences, may not seem excessive for a person with a long and unimpressive criminal record. I note, however, that for the new burglary, Mr McNamara was in fact being sentenced for aiding and abetting the burglary, rather than committing it. Although this is noted in the sentencing magistrate's reasons, she goes on to describe Mr McNamara's actions as "breaking into the relevant premises, damaging some doors, and stealing about $160 worth of cash and some confectionary items". I note also that Mr McNamara had previously been sentenced, for what appear to be somewhat more serious burglaries, to terms of seven months and nine months imprisonment, both fully suspended.

8. In this context, a sentence arising out of the new burglary that is twice as long as the previous ones, and is effectively all to be served in fulltime custody, or alternatively could be analysed as involving two-thirds of this and the earlier sentences to be served in full-time custody, could reasonably have been seen as excessive, not just by Mr McNamara, but by an objective observer.

9. I note also at this stage Mr McNamara's comments that his experience of prison has persuaded him that he never wants to return to full-time custody.

10. There is also the matter of assistance to the authorities. The assistance originally provided by Mr McNamara took the form of making a statement to the police about his own involvement in the burglary, and the involvement of his co-offender. The sentencing magistrate accepted that this has caused some difficulty for him in the remand centre.

11. At the appeal hearing, Mr McNamara indicated that he was currently being held in some form of protective custody, because of the risk posed to him by this assistance. At my request, Ms Jowitt sought and provided further information on behalf of the DPP about the significance of Mr McNamara's assistance to authorities. She was able to indicate that Mr McNamara's co-offender, Mr McGuiness, had in the event pleaded guilty, although she was not able to advise whether this was influenced by Mr McNamara's availability to give evidence against him.

(a) the fact that Mr McNamara had not previously served a term of imprisonment before the sentences appealed from;

(b) the fact that the new sentence imposed by the sentencing magistrate was substantially more severe than the preceding sentences for what might be seen to have been more serious examples of the relevant offence;

(c) the relatively small discount given to Mr McNamara for his plea of guilty for the new offence, which amounted to a 10% discount; and

(d) the detriment caused to Mr McNamara by his assistance to the authorities in relation to his co-offender, which was apparently not recognised in the original sentence;

taken together, render Mr McNamara's total sentence of 27 months and the non-parole period of 18 months manifestly excessive.

13. The appeal is therefore allowed, and Mr McNamara needs to be re-sentenced. For that purpose, I note Mr McNamara's poor record, and in particular, the fact that the third burglary, what I have referred to as the new burglary, was committed little more than six months after Mr McNamara had been sentenced to suspended sentences in respect of two earlier burglaries.

14. At the same time, I note his difficult personal circumstances, and the possibility that he is now genuinely committed to rehabilitate himself in the interests of his young family, and in the interests of avoiding further prison sentences.

15. There is a further complication in the re-sentencing. As mentioned, Mr McNamara's co-offender, Mr McGuiness, also pleaded guilty and was sentenced in this court to 18 months imprisonment for the relevant offence, expressly by reference to the sentence imposed on Mr McNamara. Rather than reducing Mr McNamara's starting sentence for that offence, I therefore propose to adopt the same approach as adopted by Gray J in sentencing Mr McGuiness, which was to provide that the 18 months sentence was concurrent as to six months with a sentence of nine months imposed on Mr McGuiness in the same sentencing hearing in respect of an earlier burglary committed by Mr McGuiness.

16. I note at this stage that, having regard to material provided on behalf of the DPP, and to Gray J's sentencing remarks, there is nothing affecting Mr McGuiness that would either require a significantly more severe penalty for Mr McNamara, or justify a substantially lesser penalty for him, in relation to that new burglary offence.

17. I consider that the sentences of nine months and seven months for the two earlier burglaries should be re-imposed, and agree with the sentencing magistrate's view, for the reasons she expressed, that those two sentences should be served concurrently.

18. As to the third offence, the new burglary, I shall as indicated re-impose the 18 months imprisonment relied on by Gray J, but specify that this term is to start three months after the start of the earlier two sentences, making a total sentence of 21 months.

19. In sentencing Mr McGuiness, who had also committed other offences, Gray J imposed a non-parole period of 14 months on a head sentence of 26 months. An equivalent non-parole period for Mr McNamara would be about 11 months, but in recognition of the difficulties he has experienced as a result of his assistance to authorities, I propose to reduce that to nine months.

20. Mr McNamara, please stand. I now sentence you to imprisonment for 18 months for aiding and abetting a burglary on 26 November 2008, seven months for a burglary committed in December 2005, and nine months for a burglary committed in April 2007. The sentences for those two earlier burglaries will run concurrently and will be backdated to 4 February this year. The 18 months sentence for aiding and abetting will be consecutive on the earlier sentences as to three months, and so it will be backdated to 4 May this year.

21. The total sentence will be 21 months, and the non-parole period will be nine months. The effect of the backdating and the non-parole period is that you will be eligible for parole at the earliest in about three months, namely, 3 November this year. At that point, the earlier two sentences will have been finalised, but if you are released on parole, the rest of the sentence for the new burglary will continue to hang over you for another year or so.

22. Now that you have a good idea of what prison is really all about, I hope that you will manage to keep out of trouble once you are released, so that you will not have to serve any more of this sentence, or indeed any other sentence. You may sit down.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the respondent: ACT Director of Public Prosecutions