Fitzgerald v R

[2018] NSWCCA 170

Court of Criminal Appeal (NSW)|2018-07-25|Before: Hoeben CJ, Price J, Davies J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-07-25

Before

Hoeben CJ, Price J, Davies J

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
PRICE J: I agree with Davies J.
DAVIES J: The applicant was charged with three counts of aggravated break, enter and steal committed on 7, 9 and 11 October 2015. The circumstance of aggravation was that she was in company with one Martin Spadina with whom she appeared to be in both a business and personal relationship. The maximum penalty for this offence is 20 years imprisonment and there is a standard non-parole period of five years.
Count 1 was the offence on 11 October, Count 2 was the offence on 9 October and Count 3 was the offence on 7 October 2015.
The applicant pleaded guilty at an early time and came for sentence before Acting Judge Delaney in the District Court. On 19 April 2017 Delaney ADCJ sentenced her to a fixed term of imprisonment of 11 months commencing 19 April 2017 and expiring 18 March 2018 in respect of counts 1 and 2. In respect of count 3, and taking into account an offence of possessing cannabis on a Form 1, his Honour sentenced her to imprisonment for 23 months commencing 19 April 2017 and expiring 18 March 2019 with a non-parole period of 12 months expiring 18 April 2018.
On 6 July 2017 she was granted bail by Walton J in this Court pending the hearing of this appeal. She has, therefore, spent 49 days in custody.
The applicant now seeks leave to appeal against the sentences imposed on the following grounds:
The sentencing judge failed to give proper and lawful consideration to whether the sentence could be served by way of an alternative to full time custody.
The sentencing judge acted on a wrong principle in his treatment of the Form 1 offence.
Further, or in the alternative to Ground 2, the sentencing judge's determination of the sentence for count 3 was irrational.
The sentencing judge failed to award a discount for pleading guilty in respect of counts 1 and 2.

[3]

Subjective matters

The applicant was born in July 1989 and is now aged 29 years.
The applicant gave evidence at the sentence proceedings but very little information about her background or subjective features was given. The evidence disclosed that she lived with her father and her sister and that she did landscape gardening for a living. She said she became pregnant on 11 August 2016 and the father was the co-offender, Mr Spadina.
The applicant disclosed that at the time of the offending she was using marijuana and ice. She said she was taking ice "maybe once a weekend" but in cross-examination this evidence was given: Q. You said that you were using ice once a weekend at the time of the offence? A. At the time of the - I was using it once a weekend upon until the offence and then I probably got on it during the offence for that week. Q. So were you using it once a week, or were you using it every night? It's just unclear from your evidence. A. So it was once or twice a week but it became more regular probably that week that we did offend Flower Power. Q. So you're saying that you were using on the night? A. Yes.
There was a pre-sentence report which supplemented the minimal information provided by the applicant in her evidence. It disclosed that she was the youngest of four siblings. Although she described a positive and supportive upbringing, she said there were frequent arguments between her parents until their separation in 2013.
The applicant said she was sexually abused by a boyfriend of her much older sister from the age of six until she was ten years old. She said she was again assaulted at the age of 17, which she said contributed to her continued drug use until she discovered that she was pregnant.
The applicant's mother advised the Community Corrections Officer that when the applicant turned 12 there was a significant change in her behaviour. She became uncooperative, sad, and suffered from depression. She underwent psychological counselling for a number of years. She was diagnosed with Major Depression Disorder at the age of 14 and "medicated with Zoloft and Zymbolta [scil. Cymbalta]". At the time of the pre-sentence report she was prescribed Valium for anxiety.
The applicant told the Community Corrections Officer that she was in a toxic relationship with Mr Spadina, that she was scared of him and scared of what the outcome would have been if she had not taken part in the offence. The officer reported that, while she expressed regret for the offence, she appeared to minimise her role in it, and appeared vague when asked about possible financial gain from committing the offence.
Her criminal record showed offences of larceny and motor vehicle offences for which she had been placed on bonds and fined. At the time of the present offending she was subject to two two-year s 10 bonds for two separate offences of driving a motor vehicle whilst her licence was suspended.
There was in evidence a series of pathology reports of drug testing undertaken by the applicant which showed that the only drugs found in her urine were drugs which she had been prescribed.
When asked in Court where the plants that were stolen ended up she said that most of them died. That information was not consistent with the Agreed Facts.
At the time of the sentence proceedings, the applicant's son was six months old. She looked after him at all times, and there was some evidence that there was nobody else available to look after him if she was given a custodial sentence.

[5]

Submissions

The applicant submitted that the sentencing judge determined the manner in which the sentence was to be served prior to determining the length of the sentence. That approach was contrary to authority and suggested that genuine consideration was not given to whether the sentence could be served by way of an alternative to full time custody.
The applicant submitted that a sentencing judge is required to impose a sentence of imprisonment in three stages as follows: (a) First, determining that no sentence other than imprisonment would be appropriate: Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1); (b) Second, determining the appropriate length of the term of imprisonment; and then (c) Third, determining how that sentence of imprisonment is to be served.
The applicant submitted that it ought to be remembered that the sentencing judge reserved his decision for nearly two months and it could be expected that his reasons would be expressed in a more precise fashion than would be done if they were delivered ex tempore in the context of a busy list.
The applicant submitted that an analysis of his Honour's Remarks showed that, at the time his Honour expressed the view that a full-time custodial sentence was the only appropriate one, his Honour had not then formed a final view as to the length of the sentence. In that way his Honour determined the manner by which the term of imprisonment was to be served before determining how long it was to be. Accordingly, the Court failed to give genuine and lawful consideration to whether a sentence other than full time custody was appropriate. The applicant relied on Douar v R [2005] NSWCCA 455 at [70]-[73] and R v Zamagias [2002] NSWCCA 17 at [22]-[29].
The Crown submitted that Douar was a case concerned with a failure by the sentencing judge to adopt what was said to be the two-stage approach required when imposing a sentence of periodic detention. In such a case it was necessary to determine first the length of the sentence and then to determine how it was to be served. Those two stages are the second and third stages described by the applicant in her submissions.
The Crown submitted that a failure to approach the matter in two stages is not itself indicative of sentencing error, particularly where the sentencing judge has made it clear why any alternatives to full time custody are not appropriate.
The Crown submitted that a fair reading of the sentencing judge's Remarks disclosed that his Honour undertook the appropriate approach to sentencing. His Honour first determined that no sentence other than one of imprisonment was appropriate and that the only appropriate sentence was one of full-time custody.

[6]

Determination

In his sentencing Remarks the sentencing judge said (at T4-5): The offences which involved a planned break-in to premises for the purposes of obtaining plants and items for the conduct of the offender and her co-offender's business was a significant and serious matter, and in my opinion falls somewhere between low and mid-range criminality. I am satisfied that general deterrence is required in this case, because people who run their own businesses are entitled to protect those businesses and be (sic) entitled to keep their items and their documents and their assets from those who seek to steal them. It is for that reason that it is a serious matter, and in my opinion quite clearly exceeds the threshold in s 5(1) of the Crimes (Sentencing Procedure) Act. … There was a significant degree of planning. They went back three times. The actions that they took together caused significant loss to the premises, and in my opinion, although I am satisfied that she is remorseful and contrite, although I am satisfied that she is seeking and desires rehabilitation, although I am satisfied that she has taken steps to overcome her ice addiction and has a reduced chance of reoffending, I am satisfied that this is a matter which requires a full-time custodial sentence.
The problem being dealt with in Douar was the tailoring of the length of the sentence to enable a particular method of serving the sentence to be achieved. The approach that the Court said ought to be followed in Douar was to guard against that problem. As Johnson J (McClellan CJ at CL and Adams J agreeing) said at [71]: It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention.
Similarly, Johnson J said at [72]: The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined, subject to the restrictions or preconditions imposed by the legislature on a particular sentencing alternative.
In the present case the sentencing judge made clear, for the reasons that he gave, that no alternative to fulltime custody was available. So much appears from the passages set out above. It was not, therefore, necessary after indicating the length of the sentence, for his Honour to consider again whether that sentence should be served by some method other than fulltime custody. No error is demonstrated in that regard.
In Paul Campbell v R [2018] NSWCCA 87 Hamill J (Bathurst CJ and Schmidt J agreeing) set out portions of the judgment of the five member bench in Parente v R [2017] NSWCCA 284 that dealt with the staged process to sentencing. That extract also included what Johnson J had said in Douar at [72]. Justice Hamill then went on to say at [53]: Before leaving this ground, I should make it clear that a failure to approach the matter in two stages, as may be suggested by the passages from Robertson, Parente and Zamagias to which I have just referred, is not itself indicative of sentencing error. However, compliance with s 5 is a mandatory requirement and, where a sentence of less than 2 years is imposed and there are clear alternatives available, the preferable course is to make it clear that such alternatives have been considered and explain why they are not appropriate.
This ground is not made out.

[9]

Submissions

It is convenient to deal with these grounds together.
The applicant referred to the sentences given for each of the three counts and submitted that there was no apparent justification for the 23-month sentence for count 3 other than a Form 1 was attached to it. The applicant submitted that there was nothing in the Agreed Facts or the Remarks on Sentence which indicated that any of the three break-in offences was more objectively serious than the others. In that way, the applicant submitted, count 3 had been increased by 12 months by reason only of the Form 1 offence.
The applicant submitted that if she had been separately charged with and pleaded guilty to the Form 1 offence it is inconceivable that she would have been given an additional term of 12 months for that offence. The maximum penalty for such an offence was in any event only two years imprisonment, and the evidence as to the quantity of the drug in question was that it was for a "small amount". Adding 12 months to a sentence by reason of a Form 1 offence in those circumstances was said by the applicant not to be in accordance with the guideline judgment Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.
The applicant submitted alternatively that, if it was not the Form 1 offence that resulted in the 12 months' increase in the sentence for count 3, the sentence for count 3 was necessarily irrational and unreasonable. The applicant submitted that there was nothing indicating that the objective seriousness of the third offence was greater because his Honour made no finding that the objective seriousness of each of the offences differed. She submitted that the offences were different only in terms of the items stolen. The Agreed Facts showed that what was stolen from the break-in on 7 October 2015 (Count 3) was a 300mm Golden cane palm and a 300mm Kentia palm; what was stolen from the break-in on 9 October 2015 (count 2) was a 500mm green Tuscan pot, a 300mm viburnum emerald cluster, 4,200mm Cordyline Torbay dazzlers, a 300mm Rhapis palm and a 200mm electric pink Cordyline; and what was stolen from the break-in on 11 October (count 1) involved 15 Virburnums, two Alexander palms, four electric flash Cordyline plants, a 200mm Kentia palm, a 200mm Bangalow palm, two 400mm Dicksonia tree ferns and two 250mm Dicksonia tree ferns.
The applicant submitted that in terms of the quantity of plants stolen, count 1 was plainly the most serious and count 3 (being the 7 October offence) the least serious. In that way the sentence imposed for count 3 was irrational, and it infected the entire sentencing process.
The Crown submitted that the two grounds were advanced on the basis that a fixed term of imprisonment is equivalent to the total term of a sentence rather than the non-parole period of a sentence. The Crown submitted that in the present case the fixed terms imposed by his Honour represented the equivalent of a non-parole period. That meant that the non-parole period for count 3 was increased by one month having regard to the offence taken into account on the Form 1 document.

[13]

Determination

The sentencing judge said this (at T5): The plea of guilty was at the earliest opportunity and she is entitled to a 25% discount on the plea. A little later in his Remarks his Honour said this (at T6-7): The sentences that I propose to impose are as follows, and I will work backwards in terms of the three dates that are referred to. For 11 October, a fixed term of 11 months. For 9 October, a fixed term of 11 months. For 7 October, including the form 1 matter, I propose that if this was a sentence after trial the head sentence would be 30 months, but in the circumstances I propose that the head sentence be 23 months after deduction of the amount for the plea of guilty.
Finally, when his Honour sentenced the applicant he first sentenced her for count 1 to a period of imprisonment of 11 months "to date from today". Next he sentenced her for count 2 to a term of 11 months "to date from today" and then for count 3 sentenced her to a period of imprisonment of 23 months with a non-parole period of 12 months "to date from today".
A reading of his Honour's Remarks makes it clear that he was considering the offences together when he dealt with a discount for the plea, special circumstances, the degree of planning and the need for a fulltime custodial sentence. Indeed his Honour went on to say (at T5): Nevertheless, even though these offences occurred over a period of three days, I have reached the conclusion that it is inappropriate for there to be any accumulation, and I propose that each sentence that I impose will be a sentence which will be concurrent.
No inference can be drawn from his Honour's use of the singular "plea" that his Honour was only referring to count 3. At a number of places in his judgment he had described what happened as "a serious matter" or "this matter". It is apparent, in that way, that his Honour regarded the three offences as part of the same course of conduct.
Attempts to work backwards from the period of a sentence to a notional starting point can be fraught with difficulty. In the same way that 23 months is not precisely a discount of 25% from 30 months, it may equally be the case that the 11 month fixed terms were reduced by approximately 25% from 15 months and rounded down. Such a rounding is common and encouraged in order to avoid discounted sentences in weeks or days. I would not accept that no discount has been provided because 11 months is not 75% of a precise figure as the applicant submits.
In my opinion, where the sentencing judge has expressly referred to an entitlement to a 25% discount in the context of talking about the whole offending, and where the first two sentences are wholly concurrent with and subsumed in the third sentence, I would not infer that the sentencing judge failed to provide an appropriate discount for the early guilty pleas.
This ground should be rejected.

[15]

Submissions

The applicant submitted that the sentencing judge concluded in the absence of evidence capable of supporting such a conclusion that there was a significant degree of planning involved in the offences. The applicant submitted that the only evidence of planning that was before the sentencing judge was the statement in the Agreed Facts that a utility had been hired from Manly Rentals by Mr Spadina. The applicant submitted that the evidence showed that the utility was hired for a period of two weeks commencing on 4 October, and on 4 October Mr Spadina engaged in a separate offence in which the applicant took no part.
The applicant submitted that she gave evidence that she was taking ice and cannabis at the time of the offending and that Mr Spadina had asked her to be involved in the offending. The applicant submitted that the fact that she was on ice militated against any conclusion that she had engaged in a significant degree of planning.
The applicant submitted that the sentencing judge made no factual findings about whether he accepted or rejected that evidence. Nor did he indicate whether he accepted or rejected her evidence about the extent of her involvement, that is, whether or not Mr Spadina had asked her to be involved. The applicant said it should be inferred that the judge did not reject that evidence. On that basis, the applicant submitted that the sentencing judge ought to have concluded that Mr Spadina was the instigator and that the applicant took no part in the planning, or that his Honour should have made no finding about whether she had been involved in the planning.
The Crown submitted that the sentencing judge did not make, nor was he asked to make, a finding that the offences were part of a planned criminal activity so as to amount to aggravation under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act.
The Crown pointed to the Agreed Facts which recorded that Mr Spadina and the applicant appeared to target specific plants. Moreover, the Crown submitted that when the police executed a search warrant at the applicant's premises they seized business records relating to the landscaping business which enabled them to locate some of the plants and garden supplies stolen during the commission of the offences.
The Crown pointed to what was said by Basten JA in Moore v R [2016] NSWCCA 185 at [75], that whether an offence is planned "will involve matters of degree", and "the comparison is between a level of premeditation of criminal conduct and a response which is spontaneous, ill-considered or opportunistic".

[16]

Determination

The applicant gave evidence that it was not her idea to choose Flower Power. She said she didn't really think about what she was doing and she was "affected on drugs at the time". It was put to her by the Crown that she was suggesting that she only engaged in the offending because Mr Spadina forced her to do it, to which the applicant said "He didn't force me to do it, but he asked me to do it with him". She agreed that she said yes. She agreed that she became pregnant to Mr Spadina after the offence. It was put to her that she was not scared of him at the time of the offence, to which she said: I - it was kind of on and off with him, with him and I all the time because he could come, we used to have fights all the time, he used to get angry and take my phone - and take the stuff - take back the stuff that he gave me.
Some of the applicant's submissions seem more directed to the balancing of the level of involvement between the applicant and Mr Spadina rather than addressing the question of whether his Honour was justified in saying that there was a degree of planning.
In the first place, some of the evidence points to a significant degree of planning. The break-ins were carried out over three nights. Secondly, as the Agreed Facts state, the offenders appeared to be after specific plants, and to walk past expensive plants and choose what they wanted according to a "pre-thought out list". Thirdly, the documents found at the applicant's premises at the execution of the search warrant, together with the finding of the plants at various locations indicated in those documents point to significant planning.
When that is coupled with the fact that the applicant agreed she was not forced into the arrangement and that the sentencing judge found that she attempted to minimise the extent of her involvement, it seems to me that his Honour's conclusion that there was a significant degree of planning involving the applicant was more than justified.
In Moore v R Basten JA said at [75]: The submissions for the applicant should be accepted in so far as the sentencing judge was in error in identifying the aggravating factor by reference to s 21A(2)(n). However, as also appears from RL [RL v R [2015] NSWCCA 106] at [37], planning may nevertheless constitute a factor affecting the relative seriousness of the offence, for the purposes of s 21A(1)(c). Whether an offence is "planned" will involve matters of degree; the comparison is between a level of premeditation of criminal conduct and a response which is spontaneous, ill-considered or opportunistic. In this sense, there was a level of planning; the sentencing judge was satisfied that the attack was not simply a response to an unforeseen confrontation. …
The present offending was not by any means spontaneous, ill-considered or opportunistic. It involved planning for the benefit of the business run by the applicant and Mr Spadina by taking plants and equipment which they needed specifically for their own clients.
This ground is not made out.

[17]

Submissions

The applicant relies on two matters in asserting that the sentence is manifestly excessive. The first is what is said to be the applicant's strong subjective case. The second is the errors asserted in Grounds 1 to 5. In the light of my conclusions in relation to Grounds 1 to 5, it is only necessary to consider the applicant's subjective case.
The matters put forward in support of her subjective case are these: (a) the applicant was taking drugs, cannabis and ice at the time of the offending. The applicant accepts that that is not a mitigating factor, but is a matter that the Court can take into account in assessing prospects of rehabilitation; (b) after the offences, the applicant became pregnant and entered a drug rehabilitation program; (c) the applicant was the sole caregiver for her child and there was no other person who could take over caring responsibilities for her child. The child's father was the co-accused, Mr Spadina; (d) the applicant had been actively engaged with the Department of Family and Community Services over an extended period of time. The Department had indicated that it was happy with her progress, and that she had engaged positively with them. The Department indicated that it was satisfied it was likely her drug use had ceased; (e) the applicant's efforts at rehabilitation were exceptional and the likelihood of her reoffending was low; (f) the applicant pleaded guilty at the earliest opportunity and was entitled to a 25% discount; and (g) the applicant had shown contrition and remorse for her offending conduct.
The Crown submitted that the sentencing judge had appropriate regard to the applicant's subjective case. She received the benefit of a finding of special circumstances which reduced her non-parole period to 52.8% of the total term. The Crown submitted that the decision to make the three offences completely concurrent was favourable to the applicant. The Crown submitted that the seriousness with which offences contrary to s 112(2) of the Crimes Act 1900 (NSW) are regarded can readily be seen from the maximum penalty and the standard non-parole period. The Crown submitted that it was an aggravating feature that the offences were committed in breach of two Section 10 bonds.

[18]

Determination

The sentencing judge first noted the documents that were tendered in relation to the background and life of the applicant. His Honour then went on to say (at T1-2): … The evidence from Ms Fitzgerald is that she was the youngest of four siblings from her parents' union. She had a positive and supportive upbringing. Unfortunately her parent separated in 2013. She claimed early sexual abuse. She claimed that as to her education she completed year 8 but was disruptive in class. She thereafter became employed, always liked working, and at the relevant time was the owner/operator of a gardening business. She also helped a friend out in relation to other businesses. She is a hard working person receiving single parent benefits. She claimed to the Community Corrections a lengthy history of problematic alcohol and drug use going back to age 14, although she had ceased drug use when her child was born. An interview with the offender's mother showed that when her daughter was 12 there was a change in her behaviour, she became uncooperative and was diagnosed with depression. She was medicated for this. It seems from this information and the material that was provided during the course of the hearing, that there were a number of features of this case which suggested that the offender had a difficult and problematic teen years, difficulties with cannabis, and the documents that were tendered as part of the case showed, inter alia, that she had sought to overcome a number of these problems by the force of her own actions, and was taking such steps as she could to rehabilitate herself.
The documents included a letter from the Department of Family and Community Services of 11 November 2016 reporting on random drug testing of the applicant since 26 August 2016. The letter indicated that it was very likely she had ceased her cannabis use and that urinalysis tests taken on four occasions in October and November 2016 detected no cannabis. The pre-sentence report provided the basis for the sentencing judge's summary of the applicant's subjective features. That report also said this: While Ms Fitzgerald expressed regret for the offence, she appeared to minimise her role in the offence and appeared vague when asked about possible financial gains from committing the offence.
The sentencing judge also said in his remarks that the applicant in the course of her evidence attempted to minimise the extent of her involvement and suggested that all the plants had died. His Honour noted that that was clearly not so from the Agreed Facts.
His Honour found that she was remorseful and contrite and that she was seeking rehabilitation and had taken steps to overcome her ice addiction. This meant she had a reduced chance of offending.
It is clear, therefore, that the matters identified as showing a strong subjective case were all taken into consideration by the sentencing judge.
What had to be balanced against those things were a number of matters including: his Honour's assessment of the objective seriousness as falling somewhere between low- and mid-range; the fact that there was a significant degree of planning involved; the fact that the offences were carried out over a three-day period; and the fact that the offences were committed in breach of two Section 10 bonds that had been imposed upon the applicant on 2 April 2015 for two counts of driving while her licence was suspended.
The applicant acknowledged, quite properly, at the hearing of the appeal that sentences imposed in respect of other cases involving contraventions of s 112(2) are unlikely to be helpful because it is well-recognised that the offence of aggravated breaking and entering encompasses a very diverse range of offending. That, of course, is a factor to be borne in mind also when considering the maximum penalty and the standard non-parole period. Nevertheless, those are matters to which consideration must be given as guideposts.
When regard is had to the fact that the sentences for the three offences were made entirely concurrent and that special circumstances resulted in a reduction of the ratio to 52%, the applicant fails to show that the sentence imposed is manifestly excessive.
I would reject this ground of appeal.

Fitzgerald v R

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