SILLS v R

Judgment 1MEAGHER JA : I agree with the orders proposed by Hoeben J and with his Honour's reasons. 2HOEBEN J : Offences and sentence On 9 November 2010 the applicant was arraigned on an indictment containing three counts as follows: Count 1: On or about 10 August 2008 at Toronto in the State of New South Wales being in a building, namely the Toronto RSL Club at 41 The Boulevard, did therein steal a sum of money and break out of the building. In the alternative: Count 2: On or about 10 August 2008 at Toronto knowing that Merrissa Sills committed the serious indictable offence of being in a building, namely the Toronto RSL Club at 41 The Boulevard, did therein steal a sum of money and break out of the building, did receive, harbour, maintain and assist Merrissa Sills contrary to section 112(1)(b)/350 Crimes Act 1900. Count 3: On 10 August 2008 at Toronto and other places did receive proceeds of crime, being a sum of money in circumstances where he knew that the sum of money was the proceeds of crime, contrary to section 193B(2) Crimes Act 1900. 3The applicant entered a plea of not guilty to count 1, but guilty to counts 2 and 3. The pleas of guilty were accepted by the Crown in full satisfaction of the indictment. The maximum penalty provided for count 2 was imprisonment for 5 years and that for count 3 was imprisonment for 15 years. 4On 17 June 2011 Coolahan DCJ sentenced the applicant as follows: Count 2: A fixed term of imprisonment for 12 months to commence 11 November 2010 and expire on 10 November 2011. Count 3: Imprisonment with a non-parole period of 15 months to commence on 11 February 2011 and expire on 10 May 2012 with a balance of term of 1 year and 6 months to expire on 11 November 2013. 5The effective overall sentence was imprisonment with a non-parole period of 1 year and 6 months with a balance of term of 1 year and 6 months. The applicant received a discount of 15 percent for his pleas of guilty. 6Merrissa Sills was the applicant's sister. She was sentenced by his Honour Coolahan DCJ on 14 May 2010 following a plea of guilty to an indictment containing one count that she on 10 August 2008 entered the Toronto RSL and broke out having stolen a sum of money, contrary to s112(1)(b) Crimes Act 1900. She was sentenced to imprisonment with a non-parole period of 1 year and 6 months with a balance of term of 1 year and 6 months. She received a 30 percent discount for her plea of guilty and for assistance. 7The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 against the sentences imposed by his Honour. The grounds of appeal are: Ground 1: The sentencing judge erred in failing to rule on objections made by the defence in respect of the content of the facts document which adverted to more serious offending than that upon which the Crown was entitled to rely having accepted a plea to the applicant being an accessory after the fact. Ground 2: The sentencing judge erred in sentencing the applicant upon an assessment of his culpability which disclosed a more serious offence than that charged. Factual background 8The following is a summary of the facts as set out by his Honour. It is this summary of facts which was the basis for the first ground of appeal. 9At approximately 3am on Sunday, 10 August 2008 an amount of $134,868.25 was stolen from a locked and secured combination safe within the Toronto RSL Club by a former employee of that club and the younger sister of the applicant, Merrissa Sills. 10During the course of that morning at approximately 3am and at 3.49am a motion sensor alarm was activated causing the club manager and her husband, together with a security officer, to attend the RSL Club in response to those alarms. At the first attendance, there were no visible signs of entry and no intruders were sighted. On the second occasion of the activation of the alarm, the same persons attended the Club. On that occasion it was established that an unlawful entry had taken place and that money had been stolen from the safe. 11During the course of police investigations, an extensive review of CCTV footage from surveillance cameras took place. By this means it was established that Merrissa Sills had carried out the theft of the money, having secreted herself within the club premises before the club was closed for the night. Ms Sills' employment with the club as a shift manager/supervisor had been terminated some 10 months before the offence. 12The CCTV footage revealed the following: