R v HARRISON

COUNSEL : M Grogan (Crown) A C Haesler (Respondent) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Respondent) CATCHWORDS : CRIMINAL LAW - Sentencing - Crown appeal - - Break enter and steal - Receiving - Error of law in sentencing at first instance due to imposition of a global sentence for different offences - Sentence manifestly lenient - Crimes Act 1900, ss 112(1) and 189 Crimes Act 1900 LEGISLATION CITED : Crimes Sentencing Procedure Act 1999 Criminal Appeal Act 1912 Pearce v The Queen (1998) 194 CLR 610 R v Cacciola (1998) 104 ACrimR 178 R v Cooper (NSWCCA, 13 July 1998, unreported) R v Douglas (1998) 29 MVR 316 R v DWD (NSWCCA, 2 March 1998, unreported) R v Eldridge (NSWCCA, 22April 1998, unreported) R v Field (NSWCCA, 2 May 1996, unreported) R v Galway (1998) 103 ACrimR 35 R v Gitt (NSWCCA, 18 May 1998, unreported) R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Hood (NSWCCA, 9 July 1997, unreported) R v Horne [1999] NSWCCA 391 R v Khamas (1999) 108 ACrimR 499 R v King [2001] NSWCCA 18 R v L (NSWCCA, 17 June 1996, unreported) R v Lilley (2000) 111 ACrimR 468 R v Mastronardi (2000) 111 ACrimR 306 R v Osenkowski (1982) 30 SASR 212 R v Ponfield (1999) 48 NSWLR 327 R v Taylor [2000] NSWCCA 442 R v Webster [1999] NSWCCA 313 R v Yerkovic [2000] NSWCCA 281 DECISION : 1. Appeal allowed; 2. Sentence below quashed; 3. Respondent sentenced to imprisonment for 3 years with a non-parole period of 18 months, commencing on 20 October 2000 for offences under s112(1) Crimes Act 1900; 4. Respondent sentenced to a fixed term of 18 months imprisonment, commencing on 20 October 2000 for offences under s189 Crimes Act 1900

60703/00 SPIGELMAN CJ SPERLING J CARRUTHERS AJ

1 SPIGELMAN CJ: This is an appeal by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act 1912 from a sentence imposed by his Honour Judge Moore at the Wollongong District Court on 20 October 2000. 2 The Respondent, Leonie Maree Harrison, pleaded guilty to two counts of break enter and steal contrary to s112(1) of the Crimes Act 1900 and three counts of receiving contrary to s189 of the Crimes Act 1900. Judge Moore sentenced the Respondent to two years imprisonment to be served by periodic detention, with a non-parole period of eighteen months. 3 A legal error appears on the face of his Honour's judgment. His Honour imposed only one sentence without differentiating in any way between the two sets of charges. Such a differentiation is required (see Pearce v The Queen (1998) 194 CLR 610). Section 112 carries a maximum penalty of fourteen years imprisonment. Section 189 carries a maximum penalty of three years imprisonment. The difference in the criminality of the two offences is clear. Nothing in his Honour's remarks on sentence indicate that his Honour considered the specific criminality involved in the two kinds of offences. His Honour imposed a single global sentence for all the offences, notwithstanding the significant disparity in the maximum penalties available and in this his Honour erred. 4 His Honour's error was manifest when he said in his reasons: "The offences occurred over a short period, 5 May to 6 June 2000. The first of them were committed whilst she was just still within her parole period following her previous conviction for offences of a similar nature. That parole expired on 27 May 2000. Although that was the expiration of a total three-year sentence, it is still an aggravating feature that the parole was still running when those offences were committed."

5 His Honour was applying the well-known principle that when further offences are committed whilst the offender is on conditional liberty, that constitutes an aggravating circumstances. (See eg Re Attorney-General's Application [No 1]; R v Ponfield (1999) 48 NSWLR 327 at 337). 6 The Crown relied on this finding, which counsel for the Respondent challenged. It was submitted to us that his Honour had erred with respect to the date of the first offence being 5 May 2000. His Honour indicated, in the passage quoted, that the parole had expired on 27 May 2000. The two break enter and steal counts were committed on 5 and 6 June 2000. His Honour identified the earliest offence as occurring on 5 May 2000, and if his Honour was in error, that does not appear in the materials before us. However, it must have been a reference to property, the subject of one of the receiving counts. One of those counts referred to property received on 5 June 2000. However, property was found relating to break enter and steal offences which had occurred, according to his Honour's judgment, over the previous two weeks. His Honour's inference was that the date on which the property had been received by the Respondent from one of these offences was 5 May 2000. 7 Accordingly, the circumstance of committing a further offence whilst on conditional liberty is an aggravating aspect, if the facts were as his Honour put it, only for one of the receiving counts. It is not an aggravating aspect for either of the break enter and steal counts. As the latter are the more serious charges, it will not be, in any event, a significant factor. His Honour's failure to comply with the requirement to identify sentences separately for each offence, in accordance with the High Court's authority in Pearce, is manifest in his Honour's statement that he would take this matter into account as an aggravating feature with respect to all of the offences. 8 The Court retains a discretion, notwithstanding the identification of the error, to refrain from intervening. Whether it should intervene in this respect is, of course, subject to the well-known restrictions on the circumstances in which Crown appeals should be upheld. 9 The two counts of break enter and steal occurred at Bulli and Coledale on 5 June 2000 and 6 June 2000 respectively. On each occasion, the modus operandi was the same. The Respondent drove a co-offender, Benjamin Watego, to the respective residential premises. He entered the premises while she remained as a lookout. The Respondent then drove the vehicle away. During the offence at Bulli, the two offenders were disturbed and only succeeded in removing jewellery. A significant quantity of electrical items, which had been placed near the garage, was left behind. After the offence at Coledale, the police stopped the car and discovered a quantity of stolen electrical items in the boot and on the back seat. They arrested both the Respondent and Watego. 10 During the course of a search executed on 6 June 2000 at the Respondent's home, the police discovered property that had been stolen on other occasions. These were the subject of the three counts of receiving. With respect to a video camera, it appears that the co-offender Watego had taken that item of property whilst the Respondent and Watego were present at a house in Thirroul on 5 June 2000. The Respondent asserted that it was taken without her knowledge, but when she received it from Watego, she knew that it was stolen. In addition, property from a number of other break and enter offences, which had occurred, it appears, over some previous period, about two weeks, was discovered at her home. 11 The Respondent is now 36 years of age. A significant factor in the exercise of the sentencing discretion was the long list of previous convictions dating back to 1982. These included one count of break enter and steal, for which she was sentenced to six months in April 1987; a series of offences including one count of break enter and steal and a count of stealing for which she was sentenced to a fixed term of three months commencing on 7 June 1990; a conviction of stealing and other counts on 5 December 1994 for which she received 150 hours of community service; a conviction for a range of offences including twelve counts of break enter and steal, four counts of obtaining financial benefit by deception and counts of receiving and of stealing for which she was sentenced to a minimum term of twelve months commencing on 26 September 1995 and an additional term of four months; a conviction on three charges of break enter and steal for which she received a minimum term of sixteen months to commence on 2 May 1997 and an additional term with conditions of twenty months. 12 It has long been recognised that prior convictions must be taken into account on sentencing for property offences. This has specifically been applied to the offence of break enter and steal in this Court's guideline judgment with respect to the offence. (See Re Attorney General's Application (No 1); R v Ponfield supra). 13 The objective circumstances of the offence, in the context of this record of persistent infringement, was such that, subject to subjective considerations and having regard to s5 of the Crimes Sentencing Procedure Act 1999, only a full-time custodial sentence can be regarded as appropriate in the circumstances of this case. 14 Over a long course of criminal conduct the Respondent has shown complete disrespect for her fellow citizens and their property. She has intruded on the privacy of the homes of her fellow citizens in a persistent and determined course which has inflicted substantial justifiable anguish and suffering on many members of the community. Only the most compelling of subjective cases could, after a history of this character, have led to a non-custodial sentence for the offences for which she stood charged on this occasion. 15 His Honour had very little material upon which to assess the subjective features of the Respondent. She gave no evidence. There was a pre-sentence report of limited scope. A number of assertions were made from the bar table. 16 The substance of his Honour's reasons for affording a degree of leniency are set out in his reasons as follows: "I do however feel that it is appropriate in the present case to come to the conclusion that she was not in real ethical content as criminally liable as the co-offender. It does seem that he was more of a moving party than she. She had been mixing with a number of undesirable associates for some time, and in fact she was anxious to disassociate herself from them and so anxious that she even initially was proposing to move out of an area where she would be eligible for alternatives to full time custody. The pre-sentence report when her life time history indicates that she is a follower and not a leader, and that she has had a fairly stressed life and from her earliest years when her upbringing was marred by severe emotional deprivation, her later years have been characterised by frequent conflict with undesirable associates. Her own assessment of things extracted by the probation officer who prepared the pre-sentence report is that she has feelings of being trapped and powerless in relationships and that her routine method of extricating herself from a relationship is to go along with illegal activity, thereby getting herself back into gaol where she can sort herself out. That is a combination of the pre-sentence report and what Mr Haesler has put after his conference with her and the probation officer. She has received a very sympathetic report from the probation officer and the Court places considerable reliance on those without abandoning its own obligations to form an independent view, and once again that comes not only from the pre-sentence report itself which is clearly favourable, but also from the statements of Mr Haesler as to that conference which I mentioned a moment ago and where I accept what he puts. Miss Harrison had to be talked out of simply abandoning herself back into gaol again and encouraged to live in an area where she could be eligible for periodic detention. I observe that Mr Haesler informed her that there was by no means any assurance that that was likely to be the result. But simply he was making her eligible or informing her of ways in which she could be eligible for the alternative. She has three children aged fourteen, seven and six, and although she has her long history of convictions and custody her instructions to Mr Haesler this time are that she's never been so ashamed of the behaviour that she has recently exhibited when she feels that it is now gravely affecting her two younger children. Again, although that is not given on oath, I am prepared to give recognition to that statement from the bar table when I look at the pre-sentence report. There is also a measure of persuasion coming from her age, an age when the court is accustomed to persons with criminal histories finally wishing to make something out of their lives."

17 As can be seen, his Honour relied on the pre-sentence report which he described as "very sympathetic" and "clearly favourable". In addition, there were submissions put to him on instructions, particularly relating to the decision of the Respondent not to move from Wollongong to Braidwood. It appears that persons residing in Braidwood are not able to be accommodated in the periodic detention program. 18 In addition to whatever was put by Mr Haesler on instructions to his Honour, the issue is considered in the original pre-sentence report of 19 October 2000 and in an updated report of 20 October 2000. The latter indicated that as the Respondent no longer planned to move to Braidwood, therefore, alternatives to full-time custody became available. 19 The basis of his Honour's reference to the Respondent wishing to be placed in custody is set out in the first pre-sentence report under the heading "Drug Usage" as follows: "The offender has had a dependency on heroin since the age of fourteen. During current pre-sentence inquiries the offender revealed her pattern of engaging in heroin usage to block the above mentioned feelings of powerlessness which she experiences in her relationships. Paradoxically, by engaging in a behaviour which she cannot control she exacerbates those feelings and claimed to commit offences in order to be placed into custody where she can break from her addiction and partner. Ms Harrison indicated that this was the reason behind her current offences." 20 His Honour concluded that the original intention to move to Braidwood was for the somewhat perverse purpose of avoiding the possibility that the Court could exercise leniency in her favour and sentence her to either periodic detention or to serving a community sentence order. It appears that his Honour made such a finding on what was put to him from the bar table. His Honour ought not to have done so. 21 The pre-sentence report, which was the only evidence before him in this respect, contradicts the proposition. The report states: "The offender revealed that one of the major reasons behind her projected move from Wollongong were threats on her life from co-offenders." 22 Furthermore, under the heading of "Periodic Detention Orders" the report said: "Ms Harrison declined to be assessed for periodic detention as she stated that she wanted to spend any free time at the weekends with her children." 23 Similarly under the heading of "Community Service Orders" the report said: "The offender stated that as she planned to be working seven days per week she would have no time available for community service work." 24 The updated pre-sentence report indicated that she no longer intended to move to Braidwood and that she did wish to be assessed for periodic detention and community service orders. 25 His Honour had no proper basis for inferring that the reason why she had earlier refused to be assessed for alternatives to a full-time custodial sentence was because of a desire to be placed in custody in order to break from her addiction and partner. The reasons she gave to the probation officer for declining to be assessed for a periodic detention or for a community service order were inconsistent with any such proposition. They suggested an objective of being released on recognisance, no doubt relying on the fact that she had two dependent children. 26 The references in the pre-sentence report are not entirely reconcilable or logical. Nevertheless, this only highlights the inappropriateness of his Honour relying, as his Honour appears to have done, on assertions from the bar table. 27 His Honour also relied to a substantial extent on the pre-sentence report which, as I have noted, he described as "very sympathetic" and "clearly favourable". I am unable to agree with his Honour that the report can appropriately be so classified. 28 The first thing to notice about the report is that it refers to the Respondent having been under supervision briefly pursuant to a parole order in Western Australia. However, that order was revoked because of the commission of further offences in that State. It says that she returned to Western Australia to serve the ten month balance of an additional term. There is no other information before the Court as to her pattern of offending in Western Australia. Nevertheless, it indicates that the history with respect to prior convictions is even worse than appears from the record tendered before his Honour with respect to New South Wales offences. 29 The effect of his Honour's reasoning was a conclusion that the Respondent was at a "cross roads" in her life which justified extending leniency, notwithstanding the objective circumstances of the offences and the long list of prior convictions. The classic statement of this principle is to be found in the judgment of King CJ in the Supreme Court of South Australia in the case of R v Osenkowski (1982) 30 SASR 212 at 212-213, which has frequently been referred to in this Court. 30 Moore DCJ said in a crucial passage of his reasons on sentence: "I do feel that this is a matter where one must make a firm decision either to have a substantial period of imprisonment or to exercise the type of leniency which is recognised for example in Osenkowski in South Australia and Hall in New South Wales. I stress that this is absolutely an unusual way of dealing with a sentence of this nature where the objective features are so serious, objective features not only as to the crime itself but as to the criminal history." 31 The issue for this Court is whether or not it was open for his Honour to make a finding that leniency of this character should be afforded to the Appellant. In my opinion, it was not open to his Honour to so find. Accordingly, the sentence imposed was manifestly inadequate. 32 As indicated in the lengthy passage of his reasons quoted above, his Honour primarily relied in this regard on statements made from the bar table on instructions, to the effect that the Respondent had "never been so ashamed" of her behaviour and she felt it was "now gravely affecting her two young children". His Honour indicated that there was "a measure of persuasion" in this regard coming from her age of about 36, his Honour finding that to be an age of which persons reach such a "cross roads". It may be that some persons who reach their mid 30's, after a life time of offending, come to a cross roads in the relevant sense. That does not mean that anybody at that age has reached such a cross roads. His Honour's acceptance of the submissions from the bar table was influenced by the pre-sentence report. His Honour did not identify any part of the pre-sentence report on which he relied in this respect. I am not able to identify any part which justifies a conclusion of this character. 33 It may be that his Honour had in mind the passage of the report which identified the problem expressed to the Probation and Parole Officer by the Respondent, together with the statement in the report that she had recognised the problem. 34 The first passage was as follows: "Ms Harrison stated that her interpersonal relationships have been characterised by emotional abuse. She claimed that her partners have all attempted to dominate her and when she attempts to end these relationships her partners would not allow her to do so. This results in feelings of being trapped and powerless which she is unable to express effectively". 35 In the concluding summary part of the report the officer said: "Ms Harrison seems to have engaged in heroin abuse and offending in order to assist her in dealing with and subsequently severing emotional attachments. It would appear that she had not previously revealed the issues underlying her drug usage and has not made attempts to deal with these issues because of her perception that therapy would make no impact on such an ingrained pattern of behaviour."

36 This, in my opinion, is an entirely inadequate basis for any conclusion to the effect that Ms Harrison was at a cross roads in her life. 37 The only aspects of the report that appear to me to be relevant to this question is the fact that in January 2000, after dependency of heroin dating back to the age of 14, Ms Harrison had entered a methadone program. However, it was noted that notwithstanding her attendance at the program, two urine samples had tested positive to morphine and codeine. 38 In my opinion, there was no evidence on the basis of which it was open to his Honour to find that Ms Harrison was at a point of time in her life where extending leniency, rather than imposing punishment, would be more likely to lead to rehabilitation than earlier in her career and that, accordingly, the interests of the community would be best served by giving less weight than would otherwise be appropriate to the objective gravity of the offence. In my opinion there was an inadequate foundation in the evidence for drawing any such conclusion. 39 The Respondent filed an affidavit in this Court indicating that she had been studying at TAFE with a view to becoming a seed collector. She noted that her youngest children, aged seven and eight, lived with her and were attending a local school and that if she was sent to gaol her children would have to change schools again. She refers to her Housing Commission location. 40 For the first time, she gave evidence of a change in her conduct in the following form: "Since prior to being sentenced I changed the people I associate with, I have maintained this and spend most of my time with my children and with an elderly lady in my neighbourhood."

41 She also purported to advance an explanation for her failure to give evidence before Moore DCJ in terms of her feeling scared and distressed, by reason of the presence in the courtroom of a number of what she described as "my previous associates", together with the fact that she had said goodbyes to her family, including her children. 42 She also indicated in the affidavit that she had continued to take methadone, was reducing her dosage and that urine sample tests had been negative. She concluded her affidavit with the following: "When I was sentenced I felt that I had been given a chance to stay with my children and make a better life for all of us. I have embraced this chance and done everything in my power to complete the weekend detention set for me and to stay out of all further trouble. I am achieving these goals and would really like a chance to continue." 43 Accordingly, in this Court there is some evidence of a change in lifestyle. It remains, however, a wholly inadequate foundation for an inference that the interests of the community would be best served by giving so persistent an offender yet another chance to reform. 44 The affidavit consists of self-interested assertions of a character which makes them almost impossible to check or test, particularly when served the day before the hearing. In the absence of any independent verification of her alleged behaviour, state of mind or of tangible expression of contrition, (there is not even an expression of remorse, albeit such would often appear glib), to treat this evidence with anything but scepticism would represent a triumph of hope over experience. 45 There is, in my opinion, taking into account s5 of the Crimes Sentencing Procedure Act 1999, no basis on which a non-custodial sentence can be justified in this case. 46 In the course of his remarks on sentence, Moore DCJ said: "One must be very careful not to be swayed by sympathy in cases of this nature, and especially where it may be that in passing a sentence which is, if it were to turn out to be unduly sympathetic, could result in false hopes to the offender, being dashed if the matter is corrected on appeal."

47 His Honour's reference to such "false hopes" may very well be a reference to earlier remarks in this Court on appeal from other judgements of his Honour. 48 In R v Horne [1999] NSWCCA 391 in a Crown appeal from a sentence by his Honour in which his Honour had not paid regard to this Court's guideline judgment on armed robbery offences in R v Henry (1999) 46 NSWLR 346, Mason P said: "Judges who turn the blind eye to an applicable guideline judgment must realise that a Crown appeal is very likely to succeed, with the consequence that the offender is placed into custody or returned to custody. The hardship that this imposes upon a young offender is manifest yet it is a necessary consequence of giving effect to proper sentencing principles. Misguided judicial kindness thus becomes unintended cruelty." 49 To similar effect are the observations of Grove J in R v Webster [1999] NSWCCA 313, a case in which Moore DCJ, in purported accord with this Court's guideline judgment in R v Henry supra imposed a four-year term for an offence of armed robbery, but it was comprised of a minimum term of only six months with an additional term of three and a half years. By the time the matter came to the Court of Criminal Appeal the offender had served the minimum term. Grove J said: "It will be a distasteful task for this Court to recommit a young man to prison in the circumstances which were outlined in the preceding judgment. The necessity to do so is as a direct result of the failure of the District Court to discharge its clear duty to impose a sentence which was compatible with recognisable and well established principle and guidelines. The sentence imposed at first instance was, so far as the calculation of the minimum term component was concerned, I regret to say a departure from the expected standards of the responsible exercise of jurisdiction."

50 The Court now finds itself again in the position where the wholly unjustified expectation induced by the inadequacy of a sentence imposed by Moore DCJ will exacerbate the impact of incarceration upon a Respondent. 51 I have identified eighteen Crown appeals from sentences imposed by Moore DCJ over the course of the last five years. Eleven of such appeals were allowed (R v Field (NSWCCA, 2 May 1996, unreported); R v Hood (NSWCCA, 9 July 1997, unreported); R v Eldridge (NSWCCA, 22 April 1998, unreported); R v Cooper (NSWCCA, 13 July 1998, unreported); R v Galway (1998) 103 ACrimR 35; R v Douglas (1998) 29 MVR 316; R v Webster [1999] NSWCCA 313; R v Khamas (1999) 108 ACrimR 499; R v Mastronardi (2000) 111 ACrimR 306; R v Lilley (2000) 111 ACrimR 468; R v King [2001] NSWCCA 18. 52 Furthermore, six appeals were dismissed in the exercise of the residual discretion of the Court with respect to Crown appeals. In five of those cases the Crown expressly found that the sentence was inadequate (R v L (NSWCCA, 17 June 1996, unreported); R v Gitt (NSWCCA, 18 May 1998, unreported); R v Cacciola (1998) 104 ACrimR 178; R v Horne [1999] NSWCCA 391; R v Taylor [2000] NSWCCA 442). In one case in which the Court dismissed the Crown appeal in the exercise of its residual discretion, no view was expressed as to the correctness or otherwise of the sentence (R v DWD (NSWCCA, 2 March 1998, unreported). In one case the Crown appeal against sentence was dismissed (R v Yerkovic [2000] NSWCCA 281). 53 In the light of this pattern of leniency it is necessary to treat with circumspection the submission of the Respondent that the Court should approach a Crown appeal from his Honour on the basis of the authorities that indicate that such appeals should be rare. 54 Nothing in the subjective circumstances that have been presented to this Court suggest that anything other than a full-time custodial sentence is appropriate, given the objective criminality of these offences in the context of the sustained history of criminal behaviour by the Respondent. 55 The pre-sentence report and the Respondent's affidavit do indicate an attempt to escape from her dependence on heroin and a new perception that therapy may assist her to avoid involvement in abusive relationships. I accept that this may justify a longer than usual period of supervision. I accordingly find that there are special circumstances in this case. 56 The Respondent pleaded guilty. That has a significant utilitarian value. She admitted guilt immediately upon her arrest and entered the plea at the earliest possible opportunity. It has no further value as there is no suggestion anywhere in the materials of contrition on her part. But for the plea, I would have been minded to impose a head sentence of four years, but I reduce that to three years. Her co-offender who, it appears, was to some extent more culpable, was sentenced to three years and nine months with a non-parole period of two years and nine months. Furthermore, I propose to backdate the sentence to commence from the original date so that for a period of some months she will have been serving a custodial sentence by way of periodic detention. 57 There are no distinguishing features between the two break enter and steal counts or amongst the three receiving counts. Nevertheless, there is a significant difference between the two sets of counts. In the light of the sentence I propose for the break enter and steal counts, a fixed term is appropriate for the receiving counts. I propose the following orders:

1 Appeal allowed. 2 Sentence imposed by Moore DCJ on 20 October 2000 is quashed. 3 With respect to each of the offences under s112(1) of the Crimes Act 1900, the Court sentences the Respondent to imprisonment for three years commencing on 20 October 2000 and concluding on 19 October 2003 with a non-parole period of eighteen months commencing on 20 October 2000 and concluding on 19 April 2002. 4 With respect to the three offences under s189 of the Crimes Act 1900, the Court sentences the Respondent to a fixed term of eighteen months imprisonment commencing on 20 October 2000 and concluding on 19 April 2002.

58 SPERLING J: I agree. 59 CARRUTHERS AJ: I agree. 60 SPIGELMAN CJ: The orders of the Court are as I have indicated. **********

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