King v R [2010] NSWCCA 202 | Case summary

10 September 2010 King v R Judgment 1 BASTEN JA: I agree with the orders proposed by Price J for the reasons his Honour gives. 2 HALL J: I agree with Price J. 3 PRICE J: The applicant Jaime Lee King seeks leave to appeal against the sentence imposed in the District Court at Penrith on 17 December 2009. The applicant pleaded guilty on 20 October 2009 to two alternative counts which pleas were accepted by the Crown in full satisfaction of the indictment. 4 The first count was an offence of demand property by menaces in company contrary to s 99(2) Crimes Act 1900. An offence contrary to s 99(2) is punishable by imprisonment for 14 years. Two offences on a Form 1, namely an offence of steal from the person contrary to s 94 Crimes Act and an offence of goods in custody contrary to s 527C Crimes Act were taken into account by the Judge on the sentence imposed on the first count. 5 The applicant was sentenced on the first count to imprisonment with a non-parole period of 2 years 25 days commencing 31 October 2008 and expiring 24 November 2010. A total term of imprisonment of 2 years 9 months 4 days expiring on 3 August 2011 was imposed for this count. The second count was an offence of steal from the person contrary to s 94 Crimes Act. An offence contrary to s 94 is punishable by imprisonment for 14 years. A fixed term of imprisonment of 1 year 10 months 28 days commencing 31 October 2008 and expiring 27 September 2010 was imposed. As this sentence was to be served concurrently, it was wholly subsumed by the non-parole period for the first count. 6 Her Honour ordered that the applicant be released to supervised parole on 24 November 2010. The Judge declined to find special circumstances justifying a variation of the statutory ratio between the non-parole period and the total term of the sentence: s 44(2) Crimes (Sentencing Procedure) Act 1999. 7 The Judge had found that the applicant was entitled to a utilitarian discount for the pleas of guilty of 15 per cent.

Whilst in custody at Blacktown police station, the applicant was found to be in the possession of various cards belonging to 'JV' which included a Commonwealth Bank keycard, Medicare card, pension card and repatriation health card. Police were told by JV that the last time she had seen the cards was when she put them in her handbag before going to a shopping centre on 31 October 2008. Subjective circumstances 9 The applicant was born in New Zealand in February 1982 and was 27 years old at the time of sentence. Her family migrated to Australia when she was seven years old. The Judge accepted that the applicant had been subjected to sexual abuse by a family member and exposed to alcohol abuse and domestic violence. Her Honour noted that the applicant had provided a history to the Probation Service of consuming illicit substances from the aged of fourteen "to block out the aftermath of sexual abuse" and had "abused heroin up until the birth of her first child in 2001." 10 The Judge observed that "in more recent times, alcohol had been her downfall" and it was "conceded by the Crown that the offences for which she now faces sentence were all committed when she was highly intoxicated." Her Honour was mistaken when she made this observation as the Crown's concession that the applicant was "significantly intoxicated" did not extend to the first count. The Judge remarked that the applicant's intoxication was not a mitigating factor but provided an explanation as to how the offences came to be committed. Her Honour noted that the applicant had been attending Alcoholics Anonymous since her return to custody, had been prescribed anti-depressants and anti-psychotic medication and had been diagnosed with a drug-induced psychosis. 11 There was evidence before the Judge that the applicant had two children who were in her mother's care. It appears that those children were two years old and eight years old at the time of sentence. Her Honour was told by the applicant's counsel that there were Family Court orders granting the mother custody of the children with the applicant having weekend access. The Probation and Parole report which was before the Judge reported that the applicant's mother was commencing treatment for a serious illness and was experiencing difficulty caring for the children while she was "dealing with her medical issues." 12 In a letter (ex 1) the applicant's mother wrote that she believed the applicant loved her children and wished one day to raise them. She stated that she had had a re-occurrence of cancer, was awaiting treatment and was "hoping on compassionate grounds…for a short custodial sentence, if not time served for [the applicant] to help [her] with the children as at times it can be very hard…" She planned to return to New Zealand but did not have a definite date. 13 During the proceedings on sentence, Dorothy Riley gave evidence that while she was in custody, she had befriended the applicant and was prepared to provide her with accommodation on the North Coast should the applicant be released to conditional liberty. Ms Riley said that it was not the applicant's plan, to take the children with her to the North Coast. 14 The proceedings were adjourned for sentence on 17 December 2009. Prior to sentence, the applicant's counsel told the Judge that the applicant no longer intended staying with Ms Riley but planned to stay with her mother. The applicant then gave evidence that her mother had been released from hospital the previous day after chemotherapy and was unable to take care of the children. The children were in the care of her sister who had three children of her own. Her plans were, she said, to live with her mother, to help in her day-to-day care, and with the children until her mother recovered. She anticipated that her mother would take the eight-year-old son to New Zealand when she recovered and the two-year-old daughter would remain with her. It was then the applicant's intention to move in with her partner on the North Coast. 15 The applicant's criminal history reveals a lengthy prior record of offending including convictions for armed robbery in company, escaping lawful custody, larceny, illegal use of a conveyance and assaulting police in execution of duty. Her Honour observed that the applicant had been dealt with "in a variety of ways, over many years, including full-time custody." The applicant, her Honour said, had breached most forms of conditional liberty and parole and had incurred numerous misconduct charges whilst in custody. 16 The present offences were committed whilst the applicant was on bail for an offence of behaving in an offensive manner on 23 September 2008. Ground 1: The sentencing Judge erred by failing to take into account the hardship on the applicant's mother and children and the applicant's subjective case generally as a reason to find special circumstances. 17 The essence of the applicant's complaint is that the Judge was asked to find special circumstances founded on the hardship that her incarceration caused to her children and to her mother, particularly in view of her mother's cancer and continuing treatment but the Judge neither dealt with that submission in her sentencing remarks nor found special circumstances. 18 Hardship to an offender's family caused by imprisonment is generally an irrelevant consideration and can only be taken into account in highly exceptional circumstances in justifying a non-custodial sentence: R v Edwards (1996) 90 A Crim R 510 at 516. There are circumstances, however, that whilst not sufficiently exceptional to justify a non-custodial sentence are sufficiently exceptional in a suitable case to justify a finding of special circumstances: R v Grbin [2004] NSWCCA 220; R v Murphy [2005] NSWCCA 182. 19 The assessment of special circumstances, however, is a discretionary matter for the sentencing judge and this Court will be very slow to intervene: R v Simpson (2001) 53 NSWLR 704; R v Cramp [2004] NSWCCA 264. In Musgrove v R (2007) 167 A Crim R 424 Simpson J said at 429: "While it may be true that another judge might have taken a different view and might have found special circumstances, for the applicant to succeed on this ground, it is necessary for him to show that it was not open to the sentencing judge to reach the decision he did - in the words of the written submissions, that it was "incumbent" upon his Honour to make such a finding." 20 During the proceedings on sentence on 10 December 2009, the applicant's counsel submitted that although the subjective material relating to the applicant's mother and to her children did not amount to "exceptional circumstances" justifying a non-custodial sentence, the material could justify a finding of special circumstances. It was also submitted that the applicant required structured support when released to parole, to minimise her prospects of recidivism and to maximise her prospects of rehabilitation. 21 After the applicant gave evidence on 17 December 2009, her counsel asked the Judge to adjust the non-parole period so as to enable the applicant to assist her mother and to build up a relationship with her two children. 22 During her sentencing remarks the Judge said that she was unable to find that the applicant was "truly remorseful or contrite." The applicant's prospects for rehabilitation and for re-offending remained "extremely guarded, having regard to her past history and her conduct whilst she has been in custody. The same must be said about her prospects for re-offending": (ROS at 8). 23 The Judge accepted that the applicant's mother was in poor health, suffering from cancer which was said to be terminal and was apparently gravely ill as a result of chemotherapy. Her Honour, however, observed that there was "no evidence to suggest that the children will suffer truly exceptional hardship as a result of the [applicant's] continued incarceration. They have been in the care of the grandmother. They are now in the care of an aunt": (ROS at 9). 24 The Judge said (ROS at 10): "I am asked to find special circumstances. I decline to do so. I have no confidence that the offender will make good any further opportunities extended to her. She can undergo supervised parole in the normal course." 25 It is plain from the sentencing remarks that the Judge was mindful of the hardship that might result from the illness of the applicant's mother. Although her Honour did not specifically refer to this consideration in the passage quoted at [24] above, I am not persuaded that her Honour failed to take that into account when she declined to find special circumstances. In any event, her Honour was entitled to be circumspect about the applicant's intention to assist her mother given her past history, the evidence of Ms Riley and the pessimistic assessment of her prospects of rehabilitation. 26 I do not propose to interfere with the discretionary assessment made by the Judge and would reject this ground of appeal. Ground 2: The sentence is manifestly excessive. 27 This ground of appeal was confined during the hearing of the appeal, by the applicant's counsel, to the sentence for the first count. The applicant complains that the sentence is manifestly excessive and relies upon statistical information from the Judicial Commission. I accept that the statistics indicate that this sentence for an offence contrary to s 99(2) Crimes Act is a stern sentence. The question is, however, whether the sentence is outside the legitimately available range and that question is to be answered on the facts of the case. 28 The Judge took into account the two offences on the Form 1 in sentencing the applicant on the first count. Her Honour said (ROS at 8): " They are also matters of some significance and do call for an increase in the penalty to be imposed. One is a matter of a like nature and the other is also a property offence." 29 The offence of "like nature" was the steal from the person contrary to s 94 Crimes Act which has a maximum penalty of 14 years imprisonment. Her Honour was entitled to consider that the sentence for the primary offence should be increased when the Form 1 offences were taken into account: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. 30 The Judge observed that the offences for which the applicant was to be sentenced, although "not the most objectively serious examples of their kind", nonetheless remained serious offences. The Judge took into account that the offending took place whilst the applicant was on bail which was a factor of aggravation. The Judge observed that the applicant's significant criminal antecedents disentitled her to leniency and "specific deterrence" loomed large "no matter the offence committed by [the applicant]." The Judge remarked that the applicant had shown "a blatant disregard for the law" over a long period of time when intoxicated. 31 Her Honour considered that general deterrence was of significance. The Judge said (ROS at 8-9): "They are the types of offences all too often committed by highly intoxicated individuals who are out of control on our streets and who have a blatant disregard for the property rights of others or for others to go about their business without being accosted, threatened, demands made upon them for their personal possessions and items stolen." 32 All of these findings were open to the Judge. I am not persuaded that the sentence was outside the range that was legitimately available and would reject this ground of appeal. 33 Accordingly, I propose the following orders:

King v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Cases Cited (5)

Cited By (10)