R v Geoghegan

[2000] NSWCCA 93

CITATION:	R v Geoghegan [2000] NSWCCA 93 revised - 12/05/2000
FILE NUMBER(S):	CCA 60209/2000
HEARING DATE(S):	21/02/2000
JUDGMENT DATE:	21 February 2000
PARTIES :	Margaret Geoghegan (applicant) Regina (respondent)
JUDGMENT OF:	Hidden J at 1; Carruthers AJ at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1246
LOWER COURT JUDICIAL OFFICER :	Luland DCJ

COUNSEL :	Applicant in Person D.M.L. Woodburne (Crown)
SOLICITORS:	Applicant unrepresented S E O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - Sentence - fresh evidence as to applicant's health
DECISION:	Leave to appeal granted. Appeal allowed. Sentence re-adjusted.

IN THE COURT OF
CRIMINAL APPEAL

60209 of 2000

HIDDEN J
CARRUTHERS AJ

Monday 21 February 2000

Regina v Margaret Geoghegan

Judgment

1     HIDDEN J: The applicant, Margaret Geoghegan, seeks leave to appeal against a sentence imposed upon her in the District Court after she pleaded guilty to an offence of armed robbery, asking the learned sentencing judge to take into account a further offence of demand money with menaces and a relatively minor offence, larceny. His Honour sentenced her to penal servitude for four years, comprising a minimum term of two years and an additional term of two years.

2     The applicant is unrepresented. She has previously forwarded to the Registrar written arguments in support of her appeal. She explained that she had written those before she received a copy of the remarks on sentence of the learned sentencing judge and, having received those remarks, she was satisfied she could not pursue those matters. Instead, this morning she sensibly acknowledged that she had some difficulty mounting any argument against the sentence which was imposed. I say no more than that, on the face of it, a sentence of the order of four years for those offences, taking into account the applicant's background and record, does appear entirely appropriate and within the range one might except.

3     The applicant quite frankly told us that the principal purpose of pursuing her appeal was to attempt to obtain some reduction in her minimum term so that she might be free at the beginning of the year 2001 for the beginning of her children’s school year. The particular significance is that one of her children will start secondary school in that year.

4     As it happens, the view I have arrived at is that there ought to be some reduction of her main term although not, of course, for that reason. The reason is this: In the course of oral evidence before the learned sentencing judge, the applicant referred to the fact that she was “badly anaemic”. The context in which she said that is now important for our purposes.

5     Today she has tendered two reports of a medical practitioner which confirm that she does suffer from that condition, identified as quite severe anaemia. Fortunately that condition is treatable. The medical reports are not all that clear about the matter but it is of significance that the doctor considers that the effects of anaemia are “to make a person feel much more easily tired, stressed and unmotivated”.

6     We received those reports in evidence primarily with a view to considering them should the question of re-sentencing arise in the light of the other matters agitated in support of the appeal. However, not without some hesitation, I am of the view that they ought to be received as fresh evidence in the true sense.

7     My misgiving arises from the fact that there is before us no explanation as to why this matter was not before the sentencing judge. Nevertheless, as I said, the applicant is before us unrepresented and I feel some latitude should be allowed in this regard.

8     What the doctor has written about the effects of anaemia appears to me to indicate that that condition could well render her experience in prison more burdensome than it might otherwise have been. That, of course, is a well recognised reason for extending some measure of leniency.

9     It appears to me that that fact, together with the other subjective matters to which his Honour did have regard, warrant some adjustment of the minimum term. I do not believe a reduction of more than three months would be appropriate but that appears to me to be the appropriate course to take.

10     I am of the view that the sentence of four years should stand but should be re-adjusted in this way. The minimum term and additional term imposed by his Honour should be quashed and in lieu I would fix a minimum term of one year and nine months to commence on 26 March 1999 and to expire on 25 December 2000. I would fix an additional term of two years and three months to commence on 26 December 2000 and to expire on the 25 March 2003.

11     His Honour recommended that the applicant be subject to the supervision of the Probation and Parole Service throughout her parole period and that recommendation should stand.

12     CARRUTHERS AJ: I agree.

13     HIDDEN J: The orders of the Court will be as I have proposed.

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